| Book Reviews |
Military Justice in Action: secretary of defense, Pentagon gen- done by the judge). In our system, Annotated National Defence eral counsel, judge advocates general, unanimity is required only in capital Legislation and every member of the House and cases; in normal courts-martial only Senate Armed Services Committees and a two-thirds vote is required to con- By Gilles Létourneau and Michel W. Joint Services Committee on Military vict, and only a two-thirds vote is Drapeau Justice. And, if I were a powerful man, required to fix the sentence, unless Carswell, Toronto, Ontario, 2011. 1761 pages, I would require each of them to sub- the sentence is more than 10 years, $114.14. mit a book report. Being neither, I’ll in which case a three-quarters vote is have to content myself with hoping required (10 U.S.C. § 852). When the that these decision-makers—or some- necessary vote is not achieved in the one with whom they work—sees this merits phase of the case, the accused Re v i e w e d b y Eu g e n e R. Fi d e l l review and buys the book. is acquitted and the case is over. By Why is Military Justice in Action contrast, Canada requires unanimity Every new military law book is worth this attention? On one level, “in respect of a finding of guilty or cause for celebration, but this is it’s simply very interesting. It includes not guilty, of unfitness to stand trial especially true of Military Justice in the governing Canadian statutes and or of not responsible on account of Action: Annotated National Defence regulations as well as case summa- mental disorder” (National Defence Legislation by Gilles Létourneau and ries and the authors’ commentaries. Act § 192(2)), and retrials are per- Michel W. Drapeau. Létourneau is a Beyond this, it demonstrates that there missible when the members do not justice on Canada’s Federal Court of are ways to ensure good order and reach a unanimous decision (National Appeal and a member of Canada’s discipline and administer justice in the Defence Act § 192.1). This is obviously Court Martial Appeal Court, and armed forces other than the institu- like the civilian model in the United Drapeau is a retired Canadian Forces tional path to which the United States States, in which a hung jury allows the officer, who now practices law in has been committed. I will offer five prosecutor to retry the defendant. Ottawa and teaches military law. of many possible examples. A third difference between Canada Military Justice in Action is the suc- First, probably the core characteris- and the United States concerns judi- cessor to the same authors’ 2006 tic of American military justice is the cial independence. In this, Canada Canadian Military Law Annotated. important role that commanders play. led the way, starting with the land- The question is why this book should Ours has been a command-centric mark decision of the Supreme Court be of interest to readers in the United system from the beginning, with com- of Canada in The Queen v. Généreux States or other countries. manders playing such pivotal roles as [1992] 1 S.C.R. 259. That case held The short answer is that Canada’s selecting the members of the court that the previous system of at-will experience with military justice in martial panel that functions, more or military judges failed to provide the recent times has been both event- less, as the jury (10 U.S.C. § 825(d)(2)). measure of independence required by filled and instructive. The history of Canada, like some other countries in the Canadian Charter of Rights and Canada’s military justice system has the common law tradition, has shifted Freedoms. Since then, Canada has been marked by legal cases—some that responsibility away from com- wrestled with how best to achieve that large, some merely fascinating—and manders to a court martial administra- independence, both through repeated by important legislative develop- tor (National Defence Act § 165.19(1)). judicial decisions and by action of ments. Taken together, they provide Whether the United States should Parliament. The most recent chapter a rich tapestry that shows how a move to a random-selection model in this saga occurred only last year, robust democracy applies its most rather than the current command- when Parliament enacted the Security cherished constitutional values and hand-picked model is not the point of of Tenure of Military Judges Act (S.C. its best thinking to the challenge of mentioning this. Rather, the point is 2011, c. 22)—one of the shortest reconciling the competing demands of simply to suggest that there are other pieces of legislation I have ever read. national defense, limited public funds, ways to handle this threshold step in Here is its operative language: and the need to ensure public confi- the military legal process, and that dence in the administration of justice. such reforms have proven workable (2) A military judge holds All three branches of Canada’s gov- to a neighboring country that takes its office during good behaviour ernment have played important roles defense function and tradition every and may be removed by the in that process, and American leaders bit as seriously as we do. Governor in Council for cause might study this history and learn from A second difference between on the recommendation of an it. Indeed, “if I were a rich man,” as Canadian and United States practice Inquiry Committee established Tevye the milkman sings in “Fiddler is Canada’s requirement that a court- under regulations made by the on the Roof,” I would give copies of martial be unanimous when determin- Governor in Council. Military Justice in Action to the U.S. ing guilt or innocence (sentencing is (3) A military judge ceases to
74 | The Federal Lawyer | July 2012 hold office on being released Is it desirable as a matter of public ument not only to the diligence of at his or her request from the policy to have the top court of the its authors but also to the strength of Canadian Forces or on attaining military justice system closely stitched the system they present and analyze. the age of 60 years. into the general appellate judiciary? As I wrote to Chief Justice Lamer, “As (4) A military judge may resign Does having judges whose only func- you know, military justice practitio- from office by giving notice in tion is to decide military appeals ners and scholars in the United States writing to the Minister. The res- encourage discrepancies between are taking an increasing interest in ignation takes effect on the day civilian and military jurisprudence? the developments in other countries’ on which the Minister receives To be sure, Canada’s military justice systems, and Canadian developments the notice or on a later day that appellate caseload is far smaller than have been at the top of the list. may be specified in the notice. that of the United States, but the Canada has much to be proud of in data indicate that the CAAF has been this area.”6 If anything, my conviction What this language means, in a nut- deciding surprisingly few cases on in this regard is stronger a decade shell, is that Canadian military judges full opinion.2 Recently, the CAAF has later. American students of the field now enjoy life tenure through the age averaged only about one case per will profit from the second edition of 60. This is in sharp contrast with judge per month, suggesting that it of Justice Létourneau’s and Colonel the crazy quilt that currently exists in would be far from irrational in this era Drapeau’s book—either by consider- the United States. Here, the Supreme of increasing governmental austerity ing whether various practices of the Court held that the Due Process to consider whether this court’s func- United States or Canada are superior Clause of the Fifth Amendment per- tions could be made part-time, as is or by enriching their understanding mits military judges to serve without true of the Court Martial Appeal Court of the increasingly different path to the protection of a fixed term of office of Canada. which we in the United States thus far (a situation Justice Scalia thought Finally, the Canadian approach to remain committed, or both. TFL would never be tolerated in a state long-range oversight of the military court system; see his concurring opin- justice system offers a model quite Eugene R. Fidell is a senior research ion in Weiss v. United States, 510 U.S. different from what American military scholar in law and Florence Rogatz 163, 198–199 (1994)). Nothing in the justice scholars and practitioners are Visiting Lecturer in Law at Yale Uni- Uniform Code of Military Justice man- used to. Congress has not held sig- versity Law School. He served on ac- dates fixed terms of office for military nificant military justice hearings in 30 tive duty in the U.S. Coast Guard from judges, and only the Army and Coast years. The statutory Code Committee, 1969 to 1972 and was president of the Guard have elected to establish such which is supposed to conduct an National Institute of Military Justice terms, albeit of very short duration annual comprehensive survey on the from 1991 to 2011. and with loopholes. The result is that, operation of the Uniform Code of in the United States, a person who Military Justice and report on the Endnotes is tried before a judge from one of number and status of pending cases 1See Eugene R. Fidell, Military Law, those services gets a better assurance as well as make recommendations 140 Da e d a l u s No. 3, 165, 169–170 of judicial independence than does a on uniformity of sentencing poli- (Summer 2011). person tried by a Navy, Marine Corps, cies, amendments to the statute, and 2See Eugene R. Fidell, The Next or Air Force judge. So much for “uni- other matters it deems appropriate (10 Judge, 5 J. Na t ’l Se c . L. & Po l ’y 303, form” justice.1 U.S.C. § 946), has long been viewed as 305 (2011). A fourth difference concerns the vestigial. When the private National 3The 2009 report of the second appellate structure in the two nations. Institute of Military Justice sought to phase of the Cox Commission may Both Canada and the United States fill this gap with its Cox Commission,3 be found at militaryreporters.org/wp- have civilian appellate courts for mili- its work received little attention from content/uploads/2009/10/cox-report_ tary justice, but the Court Martial Congress4 and was largely dismissed body.pdf. Appeal Court of Canada is com- by the military. By contrast, Canada 4A noteworthy exception is that, as posed entirely of judges who regu- has had the wisdom to sponsor seri- the Cox Commission recommended, larly and primarily serve on other ous and thorough outside evaluations, Congress required courts-martial to have civilian courts, whereas the judges most notably the one conducted by at least 12 members in capital cases. Art. of the U.S. Court of Appeals for the retired Chief Justice Antonio Lamer,5 25a, UCMJ, 10 U.S.C. § 825a. Armed Forces (CAAF) are appointed which led to important changes. I 5The Lamer Report is available at specifically to that court and cannot am sure that there are reformers as www.cfgb-cgfc.gc.ca/documents/ serve on other courts, even though, well as reform resisters in uniform in LamerReport_e.pdf. in the event of recusals or vacan- both countries, but I cannot help but 6Quoted in the Lamer Report at 1 cies, judges of the regular (Article feel that, on the whole, the Canadian n.2 and App. F. III) federal courts can be designated Forces are more open to change than to sit on the CAAF (10 U.S.C. § 942). are their counterparts on this side of The implications of these divergent the border. arrangements are worth pondering. Military Justice in Action is a mon- reviews continued on page 76
July 2012 | The Federal Lawyer | 75 reviews continued from page 75
Giant in the Shadows: The Life of moved to Washington, D.C. Robert also 1890, also at the age of 18, from incom- Robert T. Lincoln built a palatial residence in Manchester, petent treatment of a swelling on his Vt., which he named Hildene, where shoulder and a subsequent infection. By Jason Emerson he could play endless rounds of golf Robert, then 47, reluctantly served out Southern Illinois University Press, Carbondale, and stargaze from his observatory, a his term as minister, but his wife and IL, 2012. 600 pages, $39.95. tower-like structure adjacent to his daughters left England and returned to mansion. Like his father, Robert was her family’s Iowa home. a social animal and knew how to tell And, of course, there were the Re v i e w e d b y He n r y S. Co h n a good story. He often traveled to the assassinations. Contrary to hearsay that American West and throughout Europe began while he was still alive, Robert Jason Emerson’s Giant in the with his many friends. was not physically present when his Shadows is a long-awaited, refresh- But there is much more to the biog- father, Garfield, or McKinley was shot. ing look at Robert Todd Lincoln, the raphy of Robert Lincoln than his public Robert Lincoln was not a jinx, as one only one of Abraham and Mary Todd and private achievements. His life has legend had it. Actually, as Emerson Lincoln’s four sons who lived beyond generated debates and feuds since the shows, Robert was in the White House his teen-age years. Born in 1843 at the 1870s, resulting mostly in negative on April 14, 1865, resting from his Globe Tavern in Springfield, Ill., where assessments of him. Emerson’s book, duties as an aide to Gen. Grant. He Abraham and Mary Lincoln boarded for drawing on the extensive research always regretted that he had turned $4 per week, Robert was not subject he undertook for more than 10 years, down his father’s invitation to accom- to any major parental supervision. He strives for accuracy and tries to set pany him and his mother to Ford’s enjoyed a carefree, undisciplined child- aside the legends that have diminished Theatre. He was in the railroad station hood in Springfield. Robert’s reputation to this day. Emerson when President Garfield was shot but Robert graduated from the best is convinced that Robert Lincoln is was not accompanying Garfield in schools—Phillips Exeter Academy and entitled to more respect than he has the waiting room, where the attack Harvard University—and then attended customarily been accorded. occurred. Robert entered the scene Harvard Law School for one term. After Emerson’s biography of Robert a few minutes later, and, as secre- that, he moved to Chicago, where he Lincoln has several major themes. The tary of war, immediately took on read for the law in the offices of a most prevalent is that, both publicly the duties of his office to direct mili- law firm and took law courses at the and privately, Robert Lincoln’s life was tary personnel. In 1901, Robert and University of Chicago. He became touched by death. Even after Robert’s his family arrived in Buffalo for the an accomplished attorney and real death in 1926, his wife shocked the Pan American Exposition, only to be estate investor. One of his major cli- country by refusing to allow Robert told that President McKinley had been ents was George Pullman, and Robert to be buried in the Lincoln tomb in struck by a bullet some five hours ear- later became president of the Pullman Springfield, Ill,, where Abraham, Mary, lier. There is no question, according to Company, an innovative business that and Robert’s three brothers lay. She Emerson, that each of these incidents supplied railroad sleeper cars. His declared that Robert was an important affected Robert Lincoln psychologically net worth came to be in the mil- man in his own right and deserved throughout the rest of his life. lions. Although he refused numer- “his own place in the sun.” Having Emerson raises other challeng- ous times to become a candidate for served on Gen. Ulysses S. Grant’s ing questions about Robert. Did he President, he served as secretary of war staff during the Civil War and being properly care for Abraham Lincoln’s under President James Garfield and his the last surviving witness of the sur- papers? There was a rumor that Robert successor, President Chester Arthur, render at Appomattox, he was buried was hiding letters about his father’s and as U.S. minister to Great Britain at Arlington National Cemetery, with a first love affair, with Ann Rutledge. under President Benjamin Harrison. view of the Lincoln Memorial, which Emerson demonstrates, however, that, The Boston Herald lauded Harrison’s he had helped dedicate in 1922. although Robert often burned his own appointment of Robert Lincoln as “the Tragedy first struck Robert when records, he was scrupulously careful most important and the wisest appoint- he was almost seven years old, when with Abraham Lincoln’s. Robert would ment” Harrison had made. Eddie, his only sibling born at the keep Abraham Lincoln’s files with him In 1868, Robert married Mary time, died at the of age three. In 1862, wherever Robert was residing, ship- Harlan, the daughter of a U.S. senator Robert’s 12-year-old brother Willie died ping the papers between his winter from Iowa. Robert met Mary when he at the White House of typhoid fever. homes in Chicago or Washington and was 20 years old and living with his In 1871, Robert’s brother Tad, for his summer home, Hildene. In fact, in parents in Washington, D.C. Robert whom Robert had served as guardian 1923, he donated the entire collection and Mary had three children—a boy after their father’s assassination, died of his father’s papers to the Library of and two girls. The family lived com- at the age of 18, with Robert then Congress, where they had been stored fortably in Chicago until Robert retired 28. Robert’s own son, the promising since 1919. He also took steps to trace from Pullman in 1911, after which they Abraham Lincoln II, died in England in the original texts of the Gettysburg
76 | The Federal Lawyer | July 2012 Address, which had passed into non- accused Robert of having abandoned first woman admitted to the Illinois official hands. After a curious incident his father’s legacy. bar, Myra Bradwell. Mary left for in which Abraham Lincoln’s body was The strongest criticisms of Robert Springfield and then went to Europe. almost stolen from its Springfield tomb, flow from his having his mother com- Five years later, Robert and Mary rec- Robert made sure that the remains mitted to a mental asylum in 1875. In onciled. were fully preserved under multiple an article published in The New Yorker Those taking sides in the debate steel and concrete layers. on Feb. 28, 1994, Michael Beschloss over whether Robert was right or Was Robert a virulent anti-unionist? reported that “recent scholars believe wrong in committing his mother are Was he a racist? He certainly did that the problem was less the widow’s passionate, drawing support from var- not support the union movement. mental health (she was, it seems, ied readings of a collection of docu- He defended the arrests for murder highly eccentric but capable of caring ments discovered at Hildene in the last of two union activists at the Chicago for herself) than the son’s designs on 20 years. In this highly charged aca- 1886 Haymarket riot and attacked his mother’s money and his wish to get demic atmosphere, it is unlikely that the Illinois governor who later issued her out of public view.” historians following either Beschloss the men a pardon. He advised his Emerson completely rejects this or Emerson will moderate their views. client, George Pullman, during and position. He describes the deep bond Emerson discusses aspects of the after the Pullman strike of 1893 and that existed between Mary and Robert. relationship between Abraham Lincoln appeared before the 1894 U.S. Strike As a lawyer, when Abraham Lincoln and Robert Lincoln, such as that Commission to support him. But left his family in Springfield to travel Abraham let Robert play a major part in Emerson denies the allegations raised through Illinois’ Eighth Judicial Circuit, his trip from Springfield to Washington in Chicago newspapers after the strike Mary found emotional support in her in February 1861 for his first inaugura- was crushed that Abraham Lincoln young son. When she was the first tion. Robert was instructed to keep in would have been ashamed that his lady, she visited Robert at Harvard, his custody Lincoln’s intended remarks son had advised Pullman to starve the where they shopped and traveled at the inauguration, but, at one train employees into submission. According together. Having lost two sons, she stop, Robert misplaced the valise car- to Emerson, Robert had a minimal role was so anxious for him that she would rying the speech, and Lincoln, to his in the strike, merely giving advice after not let him serve in the Army until annoyance, had to locate it. Robert also Pullman had made the major deci- 1865, just as the Civil War was ending. was a sounding board for his father at sions. Still, Emerson does not deny After Abraham Lincoln’s death, Mary’s the White House. Lincoln solicited that Robert Lincoln, like most post- closeness with Robert continued as Robert’s views as he wrote strident Civil War Republicans, was a wealthy Robert provided for her housing and letters to Union Gen. George Meade conservative with a pro-business phi- counseled her on Tad’s welfare. They demanding that he block Robert E. losophy. shared in delight as Robert’s first child, Lee’s retreat from Gettysburg in 1863, The validity of the charge of racism named Mary, was born in 1869. and as he planned for the Hampton is also unclear, according to Emerson. Although Robert borrowed money Roads peace conference in 1865. On the one hand, Robert, as a mem- from his mother as he commenced Emerson writes poignantly of the ber of the Lincoln family, was revered his career in real estate investing, he morning of Lincoln’s assassination: by the African-American communi- rapidly became successful and wealthy “After breakfast, Robert spent a few ty. Although he rarely gave public on his own and did not covet his hours talking alone with his father, addresses, those he delivered totally mother’s small estate. Moreover, Mary recounting to him the final days of the supported his father’s principles. For Lincoln was not just “eccentric.” When [military] campaign. The president was example, in 1896, he delivered a Robert and his legal advisers decided so eager to spend time with his oldest speech at Knox College in Galesburg, that he had to take action, she was the son, in fact, he postponed his morning Ill., commemorating the 38th anniver- target of spiritualists and frauds who cabinet meeting—a meeting in which sary of the Lincoln-Douglas debate that were planning to steal her money. General Grant was to attend and had occurred in that town. He noted According to the respected medical the group was to discuss the impor- his father’s struggles to support right community of Chicago, she was show- tant subject of reconstruction—for two over wrong and endorsed his battle on ing signs of paranoia. She was carrying hours in order to ‘see something of behalf of all classes in society. On the all her assets—her bonds—in a pocket [Robert] before I go to work.’” other hand, Robert never opposed seg- of her dress. And who can top this story that regation in railroad travel or actively Robert was emotionally drained Emerson relates from 1860? “Robert supported civil rights. For most of by the need to proceed against his [at Harvard], standing in his nightshirt, his term at the Pullman Company, he mother. He was so embarrassed that surrounded by bullying sophomores blocked the efforts of black porters he wrote an unsigned explanation of most likely in masks, was interrogated: to improve their working conditions. his actions that was published in the ‘Are you the son of the Mr. Lincoln One former porter published a tract New York Times. In May 1875, Mary who is named by the Republicans for in 1904 called “Freemen, Yet Slaves was placed in an excellent facility, and the presidency?’ Robert admitted that Under ‘Abe’ Lincoln’s Son, or Service less than four months later she gained and Wages of Pullman Porters,” which her freedom through the help of the reviews continued on page 78
July 2012 | The Federal Lawyer | 77 reviews continued from page 77 he was. It was then demanded: ‘What gun control—are not mutually exclu- Rather, gun ownership was manda- manner of man is this father of yours?’ sive propositions. In fact, America has tory. Winkler notes, “When national Robert, very coolly and honestly, said, always had both.” He equally opposes defense became too important to leave ‘Father is the queerest old cuss you advocates of disarming Americans and to individual choice or the free mar- ever saw.’” TFL proponents of universal gun rights. He ket, the founders implemented laws views the former as foolish because that required all free men between the Henry S. Cohn is a judge of the Con- disarmament is politically impossible, ages of eighteen and forty-five to outfit necticut Superior Court. and he challenges the latter because themselves with a musket, rifle, or other reasonable regulation is consistent with firearm suitable for military service.” America’s historical practice and is In the 19th century, gun control was Gunfight: The Battle Over the good public policy. alive and well in the American fron- Right to Bear Arms in America Gunfight opens by describing the tier. Even though many people owned near-pandemonium that took place guns, it was common practice for By Adam Winkler among the masses of gun rights frontier towns to enforce stringent gun W.W. Norton & Company, New York, NY, 2011. and gun control activists outside the control measures to spur public confi- 361 pages, $27.95. Supreme Court on the morning of dence and promote business growth. the oral argument in Heller. Winkler Winkler also reveals that racism was a notes that, when the oral arguments basis for gun control in American his- Re v i e w e d b y Ara m A. Ga v o o r were held, “security at the Court tory. He describes how the Ku Klux mandated that no actual guns be Klan took an active role in disarming Gunfight weaves a compelling tale brought into the building.” Winkler freed African-Americans in the South of the historical, political, and pro- then introduces the main characters, after the Civil War. In addition, in a cedural background of the Supreme focusing on Alan Gura, the Virginia chapter titled, “Gangsters, Guns and Court’s landmark Second Amendment attorney who served as lead counsel G-Men,” Winkler shows how, during decision in District of Columbia v. for the plaintiff, Dick Heller, challeng- the Prohibition era, national gun legis- Heller, 554 U.S. 570 (2008), and of ing the District of Columbia’s ban on lation was enacted in response to the the decision itself. The book’s author, handguns. Winkler emphasizes the widespread availability and criminal Adam Winkler, is a professor of consti- National Rifle Association’s opposition use of automatic and semi-automatic tutional law at University of California, to the lawsuit, which was based on weapons. Los Angeles, School of Law. Although its fear that an adverse decision from Winkler succeeds in establishing the Second Amendment jurisprudence the Supreme Court would undermine that “[g]un rights and gun control are that Winkler discusses is complex, he its national gun rights strategy. In not only compatible; they have lived presents it in an inviting, storytelling fact, the National Rifle Association together since the birth of America.” style, which should be accessible to tried to control the litigation by filing He believes that the Supreme Court’s non-lawyers. a lawsuit of its own and by pushing decision in Heller exemplifies this fact. Winkler’s thesis in Gunfight is that for a legislative fix to render Heller’s Although he does not choose sides as guns are the beating heart of America’s case moot. At the oral argument, Gura to whether the majority or the dissent cultural divide. Such a grandiose state- faced Walter Dellinger and Solicitor had the better originalist understanding ment gives the reader quite a lot to General Paul Clement—both outstand- of the Second Amendment, he believes chew on. Winkler has little trouble ing Supreme Court litigators. that, in a sense, both sides in the gun establishing that guns are “lightning The book then moves back to debate won. The Court held that there rods of American culture, and in such a 1975, and explains that the District of is a Second Amendment individual charged atmosphere, common ground Columbia handgun ban was enacted as right to bear arms, but that such a right is hard to find.” Even if he fails to an idealistic measure that was largely is not absolute, and that reasonable convince some readers that guns are ineffective and that the lawsuit chal- gun control is permissible. In essence, the divider of the American psyche, lenging it was a vehicle to promote the the District of Columbia’s absolute he certainly succeeds in establishing individual rights theory of the Second handgun ban was unconstitutional not that they are a larger contributor to it Amendment. Touching on a variety of because it was a regulation of the right than we generally recognize. Winkler topics, Winkler addresses the relative to bear arms, but because it was so seeks to move the gun policy conver- dearth of Second Amendment scholar- extreme. sation forward by demonstrating the ship until the second half of the 20th Gunfight’s discussion of the history legitimacy of both sides in the gun century, showing that gun rights were and policy behind gun rights and gun debate, although he heavily criticizes previously not so contentious. control is so rich that the reader may the extremists on both sides, whom he Winkler dispels many historical grow impatient with the digressions refers to as “gun grabbers” and “gun myths. In the Revolutionary era, gun from the Heller story. We do not learn nuts.” According to Winkler, “[t]he laws were strict, but not in the sense what happens in the case—although two ideas—the right to bear arms and we understand that concept today. we all know what happens—until past
78 | The Federal Lawyer | July 2012 page 200. The end is worth the wait, the birth of a baby girl in May 1978. Jobs did finally admit, “Obviously, it however. Winkler’s discussion of the Lisa Nicole was Jobs’ daughter by his was named for my daughter.” Court’s deliberations in Heller, its deci- significant other at that time, Chrisann Psychoanalysis aside, some of the sion, and the effect of the decision, are Brennan, but Jobs denied paternity more fascinating takeaways from this thoughtful, entertaining, and fair. TFL and cut off relations with Brennan book involve the continuing and (who didn’t “feel up to” suing for always contentious issue of intellec- Aram A. Gavoor is an attorney at the child support). Brennan raised Lisa for tual property in the United States. U.S. Department of Justice, Civil Divi- the first years of her life on welfare, The aforementioned GUI, for example, sion, where he litigates federal district just as Apple was taking off commer- had been first devised at XeroxPARC, court and appellate cases. He is also cially. This conjunction of facts makes which is Xerox’s Palo Alto Research a professorial lecturer of law at the Jobs appear loathsome, although it Center. (PARC really did begin as an George Washington University Law must be said that he eventually did acronym.) By coincidence, in summer School. acknowledge paternity, and that Lisa 1979, at the high tide of Apple II’s Nicole Brennan-Jobs lived with him success, the venture capital division at for a period when she was a teen- Xerox wanted equity in Jobs’ compa- Steve Jobs ager. ny. Jobs let them have it—in essence By Walter Isaacson What is especially odd about the getting GUI in return for $1 million of Simon & Schuster, New York, NY, 2011. 630 denial of paternity is that, in 1981, Jobs Apple stock. pages, $35.00. actually named a computer after the Isaacson portrays this as a coup for daughter he was still claiming wasn’t Apple, as if the klutzes at Xerox didn’t his. After the Apple III flopped in mid- know what they were giving away. 1980, Jobs decided to start from scratch, Indeed, Isaacson goes rather too far in Re v i e w e d b y Chr i s t o p h e r Fa i l l e without the assistance of his longtime portraying it that way, given the fact collaborator Steve Wozniak, and with that the $1 million worth of shares that Walter Isaacson’s biography of Steve a team of newly hired engineers. This Xerox received in the exchange for Jobs is now regarded in some corners was the project he named “Lisa,” in a GUI would be worth $17.6 million a as a how-to manual for business suc- move that, as Isaacson says, “would year later. Not a bad return. cess. This can take harmless forms; have caused even the most jaded psy- Our gooey story doesn’t end there, for example, some managers have chiatrist to do a double-take.” though. In 1985, when John Sculley adopted Jobs’ catchphrase—“one more was Apple’s chief executive officer, thing”—as their own. But it might take The Rise of the Mouse Click Apple licensed GUI to Microsoft for more dangerous forms too, because Apple introduced its Lisa to the Windows 1.0. This was the catalyst Jobs’ dictatorial streak could encour- public in January 1983. In hindsight for years of conflict. In 1988, when age his admirers to let their own inner the computer looks transitional—part Microsoft came out with Windows 2.0, tyrant loose. A recent story in the Wall of the development of what we think Apple contended that the 1985 deal no Street Journal quotes Isaacson himself of as the Macintosh design—and was longer applied and sued Microsoft. complaining that managers boast to only the second personal computer him: “I’m like Steve Jobs, I drive peo- sold by anyone to include the graphi- Cutting a Deal ple to perfection,” to which Isaacson cal user interface (GUI, pronounced Through the following years, as the replies “Make sure that you have his “gooey”), which is a feature of per- litigation wore on, there was a good talents as well.” sonal computing that has long since deal of turnover in Apple’s corporate Jobs’ idiosyncrasies are, of course, come to be taken for granted. GUI is suites. After a power struggle with subject to replication, but without the the feature that allows users to click Sculley that culminated in 1985, Jobs rare combination of talents, drives, and a mouse when the cursor coincides himself was effectively fired from the circumstances that this book chronicles with a given image on the screen, company he had started. Not long in detail, the personal traits are just rather than having to type a textual thereafter, Apple’s board grew tired that—idiosyncrasies. And anyone with command. of Sculley and forced him out. Sculley the same combination of talents and Of course, neither Jobs nor the was replaced by Michael Spindler, who drives will make his or her way in the company openly acknowledged the in turn was replaced by Gil Amelio. world without trying to imitate some- source of the new computer’s name. Amelio invited Jobs back into Apple’s one else anyway. The cover story was that “Lisa” was an executive suites again early in 1997. Furthermore, it may help scotch acronym. The public relations gurus Also by 1997, it had become clear the whole rather jejune idea of man- came up with “local integrated systems that Apple wasn’t getting very far in agement-as-imitation to recall that architecture,” as a jumble of words its efforts to recover the exclusivity of Jobs’ life includes far-from-admirable that would sound like plausibly geeky GUI. Isaacson tells us that Apple “had incidents. Isaacson, who, at some jargon. Engineers on the project joked lost the case and various appeals but level, admires his subject, is none- about “Lisa: invented stupid acronym.” remnants of the litigation and threats theless candid about these incidents. Isaacson tells us that, during one of his Perhaps the best example involves talks with Jobs in researching this book, reviews continued on page 80
July 2012 | The Federal Lawyer | 79 reviews continued from page 79 of new suits lingered,” while Bill Gates American Tempest: How the Bos- to enlist John Hancock in his cause at Microsoft also had to concern him- ton Tea Party Sparked a Revolu- because only Adams could assure the self with the U.S. Justice Department tion safety of Hancock’s property from the and its antitrust division. mob. Adams needed the financial sup- When Amelio and Jobs jointly sat By Harlow Giles Unger port that could come only from the down with Gates to discuss the GUI Da Capo Press, Boston, MA, 2011. 290 pages, merchant class. It was said that “Adams issue, Gates reportedly had a tough $26.00 (cloth), $16.00 (paper). soon dug so deeply into Hancock’s time figuring out which one of them pocket that the merchant won the rep- was the boss—that is, with whom utation of being Adams’s ‘milch cow.’” he should actually be negotiating. That alliance dated from 1765 and was In-fighting at Apple continued, and Re v i e w e d b y Char l e s S. Do s k o w decisive. Amelio resigned that July. With Jobs The Boston Tea Party itself occurred now firmly at the helm again, he called A new book about the genesis of on Dec. 16, 1773. A boycott of English Gates and said, “I’m going to turn this the American Revolution with a title tea had been in place for some months thing around.” evoking the Boston Tea Party may when the Dartmouth landed with its Jobs then offered to settle Apple’s suggest that the author will equate that cargo. The Boston branch of the secret intellectual property claims against historical event with a certain current society, the Sons of Liberty, had ordered Microsoft in return for an infusion movement, perhaps making a politi- the tea agents, who were charged with of cash ($150 million) and an assur- cal statement. Fear not. Harlow Giles collecting the despised tax on tea, to ance that Microsoft’s engineers would Unger draws no parallels, but he details resign their commissions, but they had continue to make software for the the Colonies’ move to independence in not done so. While the Dartmouth and Macintosh. a coherent and convincing narrative. its companion ships stood at anchor Apple’s subsequent successes— True, we learn early on that Samuel in Boston Harbor, the Sons of Liberty especially after the seedy condition into Adams went bankrupt, and James Otis stood guard in order to ascertain that which it had fallen during Jobs’ time in Jr. went insane, but these are only facts no tea was unloaded. corporate Elba—speak for themselves. that help complete the portraits of the Unger assures us that, although If one is looking for lessons from Jobs’ complex men who were driven to risk Boston Harbor became the recipient of career, one might draw this one: a all in the cause of American freedom. a vast quantity of tea tossed overboard, solid patent portfolio is a supplement American Tempest is mostly about the Tea Party remained an “orderly to, but it is never a substitute for, a Massachusetts, and even more about affair.” The culprits were reported to sound business plan. A related point is Boston. Its three principal characters include “about fifty Mohawk Indians, that the roles of courtroom adversary are John Hancock, a wealthy mer- with whom [Sam] Adams seems to be and marketplace collaborator are anti- chant; Samuel Adams, a true revolu- acquainted and speaks without inter- thetical, and there will be times when tionary; and John Adams, a lawyer preter.” “Depend upon it,” John Adams the executives of a company will have and politician. They were the leaders wrote later. “These were no ordinary to choose one or the other. and manipulators of the movement for Mohawks. The profound secrecy in The spread of GUI from novelty to independence. The rest of the country which they have held their names, and common coin—a story that includes was carried along, sometimes reluc- the total abstinence of plunder, are Xerox’s deal with Apple and, later, tantly, by the refusal of the patriots in proofs of the character of the men.” Apple’s deal with Microsoft—that is the Bay State to give up the struggle, The Mohawks were not identified at business at its best. One hopes for even in the face of unbroken British the time. Appendix B to this book the sake of the future of the high-tech intransigence. lists “The First Tea Party Patriots” and industries in the United States that its Taxation lay at the heart of Colonial provides a second list of men who, practitioners will learn, as many alas objections to British rule. Beginning in according to claims made by their have not, that it is often best to turn 1733, the British imposed a series of families and descendants, participated away from courtroom confrontations imposts—the American Revenue Act, in the Tea Party. (The footnote to the and turn toward the world of opera- the Molasses Tax, the Stamp Acts, Tea list gives the source as an 1884 publi- tions, productivity, and (where the law Taxes, and Intolerable Taxes—on the cation.) allows) cooperation. TFL Colonists in order to defray the costs of The royal governor, Thomas protecting them. The taxes were never Hutchinson, called the Boston Tea Christopher Faille is the co-author, with a serious economic burden, but they Party “the boldest stroke that had been David O’Connor, of Basic Economic always created resentment and unrest struck against British rule in America.” Principles (2000), and the sole author among the citizenry. But this was not the only Tea Party. A of a just-released book on the financial Sam Adams’ natural constituency second followed in March 1774, and crisis of 2007-08, Gambling with Bor- was the workmen and others who similar events occurred in New York, rowed Chips. hung around the Boston docks in one capacity or another. He was able reviews continued on page 83
80 | The Federal Lawyer | July 2012 Dana C. Rogers Samir A. Sanchez Hon. Randy Smith Raeed N. Tayeh Josh L. Wells Scott L. Rogers Benjamin Schladweiler Harry F. Smithson Ryan Temme Beatrice E. Whitten Marisa Roman Darren A. Schwartz Algernon G. Solomons Cajandra M. Tice Adam Wichman Richard L. Rose Latasha C. Scott Tiffany M. Sovik Thomas S. Tisdale Jenelle R. Williams Bobbie Ross Sean R. Scullin Daniel A. Speights David J. Treacy Keith A. Williams Jeremy L. Ross Laura G. Seel Michael P. Spellman Kenneth U. Udoibok Hon. Mikel H. Williams William A. Rossbach Patricia L. Seifert Sarah P. Spruill John T. Unitt Nathan S. Williams Adam H. Rosu Fabiola Sepulveda Divya S. Srinath Alicia O. Valle Aaron T. Winn Kenneth Rubin Elizabeth Shaner Sarah G. St. Onge Neil J. Verbrugge Benjamin Winograd Brett Sabbag Shannon Sherrell Jacque E. St. Romain John J. Volin Tyler Winton Andres Saez Paul R. Shugar E. Ray Stanford Julie von Sternberg Rauch Wise David R. Saffold Aaron B. Shumway Michael J. Stanush JoAnn E. Vrabel Jamie E. Wrage Christina M. Salabert Morgan R. Sigman Edward J. Stapleton Robin B. Wagner Joshua Wu Joseph Sammartino Rafael E. Silva-Almeyda F. Xaiver Starkes R. Scott Wallinger Sarah C. Yerger Donald F. Samuel Stephanie N. Sivinski Jeremy Stewart Ann Walsh Bryce A. Young Jessica Samuel Andrea D. Smith Leasa M. Stewart Kimball Ward Robert G. Zack Sherilee J. Samuel Andrew E. Smith Hon. Elvin R. Talavera Peraza Jennifer Warren Kristin K. Zinsmaster Linda L. Samuel-Jaha Elizabeth T. Smith Matthew W. Talley Kevin K. Washburn Nathan B. Zion Denise B. Sanchez Michael Smith Judy A. Tanaka Bianca S. Watts reviews continued from page 80
in Annapolis, and elsewhere. College and the Liberty Tree. raphy by Unger that I reviewed in Many other events took place on Was the Boston Tea Party central to the November/December 2010 issue the road to American independence. the Colonists’ march to independence? of The Federal Lawyer) make cameo The Boston Massacre was grist for With all the actions and reactions appearances. Unger takes us through the Sons of Liberty’s mill. The Sons of that American Tempest describes, as the Continental Congresses of 1774 Liberty was a true terrorist organiza- well as the complexity of the Boston and 1775, which led to the drafting tion, regularly burning the homes of politics of rebellion that it explains, the and signing of the Declaration of loyalists. Smuggling and molasses are first and most famous Tea Party may Independence. also part of the story. The seizure of seem to be a footnote, blown up into There is a lot of history, and a lot of John Hancock’s ship Liberty by the a chapter, and then embellished into detail, in this relatively short volume, British was a business loss to Hancock, a book. In any event, the Tea Party which remains exciting even though but an opportunity for rabble-rousing is emblazoned in American folklore the outcome is not in doubt. TFL to Sam Adams. John Adams represent- as the most dramatic adventure in the ed Hancock in the trial that followed march to American freedom. Charles S. Doskow is dean emeritus the seizure of the ship. There are many other familiar and professor of law at the University The story goes on, with British names in the story, some from outside of La Verne College of Law and a past intransigence and Colonial opportun- New England. George Washington and president of the Inland Empire Chapter ism playing a role, along with Harvard Patrick Henry (the subject of a biog- of the Federal Bar Association.
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