| Book Reviews |

Kafka Comes to America: self embroiled in the war on terror and his family was frightened, and his life Fighting for Justice in the War on defending those vilified by the Bush became a nightmare of accusations. It Terror administration and despised by the would take Wax and his team several country. Everyone believes that these harrowing weeks of working feverishly By Steven T. Wax suspects are guilty. Does it matter that to reveal the FBI’s error. (For a history Other Press, New York, NY, 2008. 380 pages, they get a trial? It should matter, because of forensic fingerprints, see Simon A. $25.95. Brandon Mayfield and Adel Hamad, an- Cole, Suspect Identities: A History of Fin- other alleged terrorist whom Wax repre- gerprints and Criminal Identification, sented, were innocent. which I reviewed in the August 2003 is- Re v i e w e d b y Jo n M. Sa n d s On March 11, 2004, a bomb exploded sue of The Federal Lawyer.) in the Madrid subway. The investigation One rewarding feature of Kafka Brandon Mayfield was alleged to be soon centered on an Al Qaeda terror- Comes to America is Wax’s firsthand ac- a terrorist with ties to Al Qaeda and to ist cell with North African connections. count of how a public defender goes have helped explode a bomb in Madrid One piece of evidence was a plastic bag about representing a client. Wax takes that killed nearly 200 people. He was with a fingerprint. The FBI assisted the us through the steps—from the call from facing the death penalty. If you were his Spanish investigation and fed the fin- the court informing the public defend- public defender, what would you say to gerprint into a computer database. The ers’ office that an initial hearing has been him at your first meeting? In this case, investigators were surprised when this set on a new defendant, to the meeting Steven Wax said, “We need to deal with fingerprint led to a match with an Amer- in lock-up, to the initial court appear- reality and be honest with each other. I ican citizen, Brandon Mayfield. Mayfield ances, to the dawning realization of the will never pull any punches with you. was an honorably discharged soldier, a scope of the case. Wax makes clear the You’re going to know exactly what I husband and father, and a Muslim, who enormous responsibility of representing know about the case. There are some had converted to Islam at the behest a person who is facing the death pen- tough decisions that you will have to of his wife, whose father was Egyptian alty for terrorism and who insists that he make, and my job is to help you make and was teaching at an American col- is completely and absolutely innocent. them, armed with the best and most lege. The Spanish authorities did not Defense counsel are usually inured to complete advice I can give you. You believe that the fingerprints matched, such protestations and become all the may not always like what I say and, but the FBI’s so-called experts, in their more skeptical of them when the pros- when you don’t, remember this conver- zeal, viewed the evidence through their ecution claims to have fingerprints. But sation and that I can serve you best with prism of bias and saw what they wanted Wax makes clear to Mayfield that he will complete honesty between us.” This is to see. defend him zealously, no matter what; what Wax says to all his clients, and he The supposed match was a botched as Wax tells Mayfield, in pressing him is true to his word. comparison, but this was not discovered about what really happened, “whether Brandon Mayfield, a lawyer, was sus- until later. In the meantime, the FBI or not I believe you are innocent is not pected in the Madrid bombings because thought that it had its man and began to the issue. I’m going to fight just as hard of a supposedly damning fingerprint connect the dots of his life, rather than for you whether you are involved or found on a plastic bag associated with re-examine the points of comparison not. The truth matters in deciding what a terrorist cell. It was Wax’s mission to between the ridges, loops, and whorls we do, not whether I fight.” Even with defend him as best as he could, and of the two sets of fingerprints. To the his legal training, Mayfield was skeptical Wax did so, exemplifying the best tra- FBI, Mayfield’s life conveyed circum- of Wax’s assurances. ditions of the legal profession and the stantial evidence of guilt, because May- Wax takes us through his decisions guarantees of the Sixth Amendment. field had represented Arabs on immi- and the hesitancy he felt, in light of the Kafka Comes to America is Wax’s ac- gration charges, and, in this capacity, he fingerprint match, at banking so much count of representing Mayfield, told in had ties with a known terrorist. There- on his client’s protestations of inno- the way Wax said that he would deal fore, he must have been involved in the cence. He re-creates the atmosphere of with Mayfield: with honesty and with bombing. In the military, Mayfield had fear, and the government’s whipping up no pulled punches. And what a story it worked on Patriot missiles; therefore, in of opinion against Mayfield by leaking is! Wax and I are colleagues; he is the the FBI’s eyes, he must know about ex- information to the press as well as misin- federal public defender for the District plosives. His conversion to Islam surely formation on “deep background.” Wax, of Oregon, and I am the federal pub- indicated a radicalization of his views, in the meantime, began to examine the lic defender for the District of Arizona. and his Internet searches of the news government’s case, but he encountered Knowing Wax, it is impossible not to be of terrorist attacks must suggest that he a problem: the government was not in affected by his grace and commitment himself planned a terrorist attack. May- the mood to share its evidence of May- to indigent defense. Yet, although one field’s home was subject to “sneak and field’s innocence and hid behind claims can be committed to defending indigent peek” searches. And then, on May 6, of “classified information” and national clients charged with ordinary crimes, it 2004, he was arrested, his office and files is something else entirely to find one- were seized, his home was ransacked, reviews continued on page 50

July 2008 | The Federal Lawyer | 49 reviews continued from page 49 security. Wax also had to consider the as an enemy combatant. Held for years, you anything he learns from any risks he would run in asking the court he was finally able to challenge his con- classified source. Now defend to allow his own expert to examine the finement when, in Rasul v. Bush, 542 yourself.” fingerprint; for example, if the request U.S. 466 (2004), the Supreme Court held was granted, the government might try that it had jurisdiction to consider habe- Wax’s account of the jury-rigged pro- to come up with a new theory to show as petitions from Guantanamo inmates. ceedings at Guantanamo, which he ef- Mayfield’s complicity in the attack. We Hamad penned the following: fectively interweaves with his account know the ending of Mayfield’s experi- of the Mayfield case, demonstrates the ence, but the story is still engrossing be- I request your honorable court to craft and persistence of counsel. Some- cause of Wax’s and his team’s doubts, look into my request with consid- how establishing trust with a client who concerns, and calculations. Wax’s de- eration and that is that I object to had no reason to trust him, Wax and pictions of in-chamber conversations my detention at the Guantánamo his defense team get crucial information with a skeptical judge and the dealings Bay, Cuba detention camp as an that corroborates Hamad’s story of his with the good cop/bad cop prosecutors enemy combatant. Therefore I whereabouts and charitable mission. In- all ring true. Some bruised feelings may wish to file a petition for a Writ of vestigation in war-torn and dangerous come out in Wax’s characterizations, Habeas Corpus. With my appre- countries ensues as well as more trips but nothing that seems like an attempt ciation and my respect to you and to Guantanamo, and finally, despite at settling the score. Assistant U.S. at- my trust you will do me justice. the tribunal’s skepticism, Wax secured torneys who are assigned to prosecut- Hamad’s release. ing accused terrorists, especially those This habeas corpus petition, the The efforts of lawyers like Wax dem- from the main office of the U.S. Depart- venerable Great Writ, landed on Wax’s onstrate how important counsel is. Pro- ment of Justice and not from the local desk by virtue of his job as a federal de- viding independent counsel is not a districts, appeared to be true believers; fender. What follows is the Kafkaesque wink to due process, but gives innocent those with doubts kept them to them- experience of trying to defend someone people the ability to defend themselves selves. without knowing the evidence or even against the power of the state. Even if a Wax’s efforts led to the unraveling of the charges filed against him. This mad- defendant is guilty, the verdict is mean- the case. New fingerprint experts ruled dening experience is still going on. In ingful only if he or she has had an ad- out Mayfield as a suspect. The subse- Kafka’s The Trial, Josef K. is arrested for equate defense. quent investigation revealed a host of a crime that is never revealed, and he is Wax writes in an understated man- errors and a great deal of sloppy work tried, in secret, on evidence that is never ner; he does not provide soaring rheto- on the part of the FBI and its so-called revealed. Wax quotes from the novel: ric, but rather a straightforward account experts; it is startling just how inept the of a professional at his craft, which is FBI was and the degree to which its K. must remember that the pro- nothing more and nothing less than ef- investigators wore blinders. Heads jus- ceedings were not public; they fectuating the Sixth Amendment’s right tifiably rolled, and new protocols were could certainly, if the court con- to counsel. In recounting his experi- put in place. Mayfield himself received a sidered it necessary become pub- ences, Wax had to re-create conversa- settlement in a civil suit, but not before lic, but the Law did not prescribe tions, and they ring true. (Of course, he other government abuses, including ac- that they must be made public. secured his clients’ permission before tive misleading of the courts, were re- Naturally, therefore, the legal re- revealing any confidential communica- vealed. All in all, this is a sordid account cords of the case, and above all tions.) I’m a bit uneasy about re-creating of a prosecution, and it should bring the actual charge-sheets, were in- dialogue; turns of phrases and that right shame to the government. Of course, accessible to the accused and his riposte come out better the second time the Department of Justice and the Bush counsel, consequently one did around. But Wax, to his credit, keeps administration remain steadfast in the not know in general, or at least the dialogue spare and believable. The rightness of their cause and their inter- did not know with any precision, epigrams that head each chapter come pretation of executive power. One does what charges to meet in the first from a wide range of sources—judicial not sleep any easier after finishing this plea. opinions, literature, Yiddish proverbs— book. and appear to be phrases that he has Adel Hamad, Wax’s other client who “Translated to Guantanamo,” Wax used, not drawn from books of quota- was charged in the war on terror, was writes, “The Trial would go like this: tions. a Sudanese hospital administrator, who Why does Wax do this work? Kafka was picked up in Pakistan in 2002 by We say you are guilty of being Comes to America also tells his story. Pakistani security. Questioned about an enemy combatant but won’t tell Upon graduating from Harvard Law providing aid and comfort to terrorists, you why or what the evidence we School and having experienced the civil Hamad protested his innocence. He was have. We won’t give you a lawyer rights movement and student unrest, assured that his papers were in order in our CSRT proceeding, won’t let Wax devoted himself to public service and that he would be released shortly. your habeas corpus lawyer help in order, in a sense, to repay a country Instead, he was taken to Guantanamo you there, and won’t let him tell that had offered refuge to his grandpar-

50 | The Federal Lawyer | July 2008 ents when they fled anti-Semitism, po- couraged “manliness.” His favorite mag- San Juan Hill during the Spanish-Ameri- groms, and state terror in Europe. First azine was Our Young Folks, which ad- can War. Following his military service, as a prosecutor and now for the past monished readers that “a strong building in 1898, Roosevelt was elected governor 30-plus years as a public defender, Wax cannot be composed of weak timber.” of New York. He had campaigned hard has been a dedicated public servant. In While an undergraduate at Harvard, for William McKinley in the 1896 presi- this way, he rebuts Justice Antonin Sca- Roosevelt’s love of the outdoors influ- dential election, replaced Garret Ho- lia, who, in a recent C-SPAN interview, enced his initial choice of a career as bart as the Republican vice presidential expressed surprise about the job, saying a naturalist. His favorite professor was candidate in 1900, and after McKinley that “a public defender from Podunk is Nathaniel Shaker, a paleontologist who was assassinated in 1901, found himself, so good, is so smart, is so competent. taught Darwin’s theories and proposed at the age of 42, the youngest person And I ask myself, ‘What is she doing be- that the Teutonic race was the final and ever to become President of the United ing a public defender in Podunk? Why perfect stage of human development. States. (John F. Kennedy was the young- isn’t she inventing the automobile or, Roosevelt adopted this philosophy as his est person ever elected President.) you know, doing something useful.’” own. Racial superiority became a moral In the 1896 presidential campaign, Wax is doing something useful. mandate requiring duty, character, and Roosevelt had showed his conserva- I know a judge who is on the For- action. Roosevelt also came to admire tive side in his attacks on William Jen- eign Intelligence Surveillance Court. the settlers of the American West, who nings Bryan and the free silver platform. Occasionally we share the same plane he thought defined the country’s daring Roosevelt was also clearly anti-union, to Washington, D.C. Would it be an personality. exploiting the public’s anxiety over inappropriate ex-parte proceeding if I In 1878, when Roosevelt was 19, his union negotiating tactics. At the same pressed this book upon him to read on father died. Roosevelt felt crushed and time, Roosevelt realized that members the plane? The book makes a great case changed his plan to become a scien- of the working class had been neglect- for the defense. TFL tist, deciding instead to enter politics, in ed, and he declared that capitalists were which his father, a wealthy businessman, members of the “wealthy criminal class.” Jon M. Sands is the federal public de- had played a role. In 1881, Roosevelt By the time Roosevelt became Presi- fender for the District of Arizona. dropped out of law school to run for the dent, he had become more progressive. New York State Assembly in what he He was influenced by a popular min- Theodore Roosevelt: Preacher of conceived of as a high-minded crusade ister of the day, Washington Gladden, Righteousness for a better world. He was elected. who strengthened Roosevelt’s view that Roosevelt’s thinking was also shaped salvation required the state to intervene By Joshua David Hawley during the time that he recovered from on behalf of those in need. As Steve Yale University Press, New Haven, CT, 2008. the sudden death of his wife in child- Courtney points out in his new book, 318 pages, $35.00. birth in 1884. He resigned from the state Joseph Twichell: The Life and Times of legislature and traveled to the Badlands Mark Twain’s Closest Friend, Roosevelt of the Dakota Territory, where, living was a hero to liberal Protestants. To Re v i e w e d b y He n r y S. Co h n with cowboys, he commenced writing Twichell, who was the minister of the his five volumes of American history. Asylum Hill Congregational Church in Mark Twain once called Theodore His themes were that the English lan- Hartford, Conn., Roosevelt was part of Roosevelt (1858–1919) a “showy charla- guage was synonymous with the prog- the “steady progress from age to age” of tan.” Joshua Hawley disagrees; in Theo- ress of civilization and that Western civi- righteousness. dore Roosevelt: Preacher of Righteous- lization was characterized by a constant Theodore Roosevelt’s economic ness, he demonstrates that Roosevelt struggle. A man who struggles proves views at this time were shaped by Henry had substance—that he had intellectual himself truly human. Carter Adams, an economist who urged and philosophical bases for his actions. Leaving the prairie, in 1886 Roosevelt that the government intervene in pri- Although biography is an avocation for remarried and ran unsuccessfully for vate market decisions. Especially after Hawley—he is now a law clerk for Chief mayor of New York City. In the 1888 his massive victory in the 1904 election, Justice Roberts—his effort here is quite presidential election, he campaigned for Roosevelt took on the trusts and lobbied professional, and he adds a broader di- Benjamin Harrison, who, when he be- Congress to establish the Interstate Com- mension to the historical record of one came President, appointed Roosevelt to merce Commission and the Food and of our greatest Presidents. the Civil Service Commission. Roosevelt Drug Administration. He claimed to be Hawley takes the reader through the served as Civil Service commissioner following the dictates of Edmund Burke 60 years of Roosevelt’s life, setting forth until 1895, when he became New York and to cling to conservative principles what influenced him as a boy and a City’s police commissioner. In 1897, as he tried to prevent class warfare. youth and describing the ideas he held President McKinley appointed Roosevelt As Roosevelt’s second term ended, as a young man and as an adult. As a assistant secretary of the Navy. Roosevelt he gave his blessing to his hand-picked child, Teddy developed severe asthma resigned from that position in 1898 to successor, William Howard Taft, and and was physically weak. Recovering become a colonel in the First U.S. Vol- went on an extensive hunting trip in Af- bodily strength became his passion, and unteer Cavalry Regiment (the “Rough he read books and magazines that en- Riders”), whom he led up Kettle Hill and reviews continued on page 52

July 2008 | The Federal Lawyer | 51 reviews continued from page 51 rica. But Taft proved to be a traditional thereby, in Hawley’s words, “protecting failing, and America is losing the edu- Republican, favoring the tariff and hav- the activities that make us human and cation race. Is this today’s assessment? ing little interest in land conservation, make us free.” TFL No, those were the fears in the 1950s, and by 1910 Roosevelt was back on the when Life and other mass-circulation campaign trail, seeking the Republican Henry S. Cohn is a judge of the Con- magazines bemoaned the state of edu- presidential nomination for 1912. Now necticut Superior Court. cation in articles titled, “Why Johnny he was in favor of the “New National- Can’t Read” and “Why Do Students Bog ism,” a doctrine that was shocking for The Annotated Cat: Under the Down on the First R?” Part of the blame its time, as it enshrined what came to Hats of Seuss and His Cats was placed on the teaching material be called the welfare state. In his sup- used in primary grades, particularly on port for this doctrine, Roosevelt ad- Introduction and Annotations by Philip the dullness of the texts. Geisel, already opted the teachings of Herbert Croly, Nel a popular author of children’s books, author of The Promise of American Life Random House, New York, NY, 2007. 190 convinced Random House to launch a and soon to be editor of The New Re- pages, $30.00. new type of children’s book—one that public. After studying Croly’s works, would be irreverent and exciting. Given Roosevelt declared that he favored a the go-ahead, Geisel initially found him- policy of “more active governmental Re v i e w e d b y Jo n M. Sa n d s self stuck. interference with social and economic Geisel gave many accounts of how conditions in this country than we have Except for nascent members of the The Cat in the Hat came to be. His favor- yet had.” Federalist Society, very few of us grew ite account begins with the description Hawley is at his finest in describing up reading Supreme Court opinions of his frustration at the list of 300 words the pivotal 1912 election and the intel- or perusing the U.S. Code Annotated. to which he was restricted. He wanted lectual differences between Woodrow Rather, we cut our literary teeth on The to write an adventure story in which the Wilson and Roosevelt, who was rejected Cat in the Hat books and their sup- heroes would climb mountains and save by the Republicans and signed on with posed moral relativism. Now, more people. Unable to come up with any- the Progressive Party. Roosevelt called than 50 years since its publication in thing, he took the first two words from Wilson a reactionary on the ground that 1957, when, in Ellen Goodman’s words, the list that rhymed—“cat” and “hat”— Wilson would leave the destitute with- The Cat in the Hat “worked like a ka- and started from there. Another account out governmental aid. Wilson, forming rate chop on the weary little world of has Geisel riding an elevator up to the his views with the help of Louis Bran- Dick, Jane and Spot,” a definitive an- publisher’s office to pitch the book, and deis, called for individual freedom and notated version of both The Cat in the when the doors opened at a lower floor, open markets. He favored competi- Hat and The Cat in the Hat Comes Back a spry elderly woman entered with a tion, not regulation, and believed that has been published. The Annotated Cat wry smile and white gloves. Other ac- Roosevelt’s cure for social ills relied too will delight the obsessive lawyer in all counts focus on Geisel’s constant doo- much on government intervention. After of us. dling, which included early sketches of Wilson defeated Roosevelt, however, he The Cat in the Hat tells of a brother a mischievous cat. adopted many of Roosevelt’s views as and a sister who, left alone at home, al- An academic, Philip Nel traces Dr. his own. low in a human-sized cat who is wear- Seuss’ cat to its literary antecedents. Roosevelt died at the age of 60, ing a hat; the story that follows describes Among the precursors were comics, es- drained by the death of his son Quen- the mischief that ensues. In The Cat in pecially George Herriman’s “Krazy Kat,” tin in World War I. Roosevelt’s final sad the Hat Comes Back, the Cat returns in which the rambunctious Ignatz Mouse years were spent as a political outcast, with Little Cat A nested inside his hat. experiences a cross-species transforma- railing against the popular Woodrow Little Cat A doffs his hat to reveal Little tion into a cat. Other influences were Wilson and dabbling in matters such as Cat B, who, in turn, reveals C, and so troublemaking varmints, ranging from eugenics. Joshua Hawley’s achievement on down to the microscopic Little Cat Howard R. Garis’ Uncle Wiggly, who is that he does not let us forget that, Z, who turns out to be the key to the was a top-hatted rabbit popular before with all his idiosyncrasies, Theodore plot. The Annotated Cat contains the World War I, to Ub Iwerks’ animated Roosevelt remains one of America’s entirety of both books (including their cartoon, “Dick Whittington’s Cat,” in great figures. Roosevelt’s preachy mes- covers), explicating the 236 words used 1936, featuring a cat, who, like Dr. Seuss’ sage is relevant to today’s politicians, in The Cat in the Hat and the 290 words wore a hat and gloves. One of the pre- who should recognize that politics is in The Cat in the Hat Comes Back. Philip cursors was even an animated movie in more than, in Hawley’s words, a “ba- Nel’s annotations provide a biography which a cat named Felix is home alone nal project of economic management”; of Theodor Seuss Geisel (Dr. Seuss) as with a young child, and the cat, natu- good government also has its moral well as a sociological snapshot of the rally, proves to be a disastrous babysit- challenges. Politicians should add to time, including an examination of the ter. Traveling back to before the 20th their calls for the liberty of the individ- cultural impact of the The Cat in the Hat century, Nels points to Charles Perrault’s ual a recognition that government must books. “Master Cat, or Puss in Boots,” dating play a role in solving society’s problems, Children cannot read, the schools are from 1697, and the variations that flowed

52 | The Federal Lawyer | July 2008 from that story. Then there was Edward it’s ameliorated by the fact that the Cat translations of the books are works of Lear’s illustrated poem, “The Owl and cleans everything up at the end. It’s rev- art in themselves, catching the originals’ the Pussycat” (1871), and John Tenniel’s olutionary in that it goes as far as Keren- rhythm with short common words. Even illustrations for Lewis Carroll’s Alice’s sky and then stops. It doesn’t go quite the sounds have to be translated: “plop” Adventures in Wonderland (1865) and as far as Lenin.” Who came up with this becomes “plopp” in the German transla- Through the Looking-Glass (1871). In il- explanation? Dr. Seuss himself did. tion, “plope” in Hebrew, “paf” in Span- lustrating his books, Dr. Seuss worked Nels provides a wealth of informa- ish, and “sss” in Latin. and reworked the drawings, and Nels tion about the Cat and its author. The The Cat in the Hat has influenced our provides ample examples of each draw- Cat sometimes has five fingers, some- culture widely. Parodies of the book are ing, showing how the rough sketches times four, and sometimes three. And, numerous, as are the lawsuits alleging developed. although The Cat in the Hat made Dr. that these parodies infringe a copyright. The Cat in the Hat begins with the Seuss famous and wealthy (Nels pro- (The most noted of these lawsuits in- following verse: vides all the sales figures), Dr. Seuss was, volved a parody of O.J. Simpson’s mur- in fact, a dog person and did not own a der trial. Dr. Seuss Enterprises L.P. v. The sun did not shine. cat at the time he wrote the books. Penguin Books USA Inc., 109 F.3d 1394 It was too wet to play. We also learn that, in 1956, 67 per- (9th Cir. 1997).) The Cat in the Hat has So we sat in the house. cent of American households had at been made into a television program All that cold, cold, wet day. least one dog, 41 percent had at least (with a different ending) and, in 2003, one cat, 22 percent had at least one into a movie starring Mike Myers in the Sounds simple, but it isn’t. As Nel ex- bird, but only 7 percent had a fish as title role. The rock band R.E.M. men- plains, “The Cat in the Hat is writ- a pet. Moving from pets to humans, tions The Cat in the Hat Comes Back its ten mostly in anapestic dimeter, while one in seven households had a mother 1992 song, “The Sidewinder Sleeps To- sometimes preceding an anapestic foot working full-time outside the home. In night.” with an iamb. An iamb is an unstressed The Cat in the Hat, Dr. Seuss has the Returning to the end of the first book syllable followed by a stressed syllable; mother leave for the entire day—for is an appropriate way to end this re- an anapest is two unstressed syllables who knows what? The critic Louis Me- view. You will remember that the moth- followed by a stressed syllable; and ‘di- nand scolds, “What private demons or er comes home and asks her children: meter’ means that such a pattern occurs desires compelled this mother to leave twice in a line.” (Yes, this will be on two young children at home all day, “Did you have any fun? the test.) Nels points out the interplay of with the front door unlocked, under the Tell me. What did you do?” words, stresses, and repetitions. supervision of a fish? Terrible as the cat And Sally and I did not know What does the fish in The Cat in the is, the woman is lucky that her children What to say. Hat represent? Commentators—and do not fall prey to some more insidi- Should we tell her they are legion—have had a field day ous intruder.” Yet, as Nel notes, no critic The things that went on there that in trying to explain the characters, or expressed concern at the time or threat- day? at least stick labels on them. Dr. Seuss ened to call Child Protective Services on Should we tell her about it? called the fish “my version of Cotton the author. Nel explains that communi- Now, what SHOULD we do? Mather.” The psychoanalytical expla- ties were tightly knit in the 1950s, and Well … nation has the fish representing the su- we notice the presence of neighbors in What would YOU do perego and the authority of the absent The Cat in the Hat. If your mother asked YOU? mother (more on that later). Nels writes Nels sees The Cat in the Hat and The that Thing One and Thing Two (who Cat in the Hat Comes Back as a unified The question poses a moral dilem- are unleashed from the box that the Cat work. For example, whereas, in the first ma. Think about how ambiguous the brings in) “seem to spring from the id— book, weather is a cause for boredom, question is. Of course the child knows pleasure-seeking, impulsive, chaotic. in the second book, a snowstorm forces what she should answer. But would The children serve as the ego, trying to the children to work. The Cat is greeted she? If the book is being read to her, mediate between the fish (superego) with open arms in the first book but is the answer probably differs from what on the one hand, and the Cat and his regarded with suspicion in the second. it would be if she read the book herself. Things (id) on the other.” Aren’t you Nels also includes several of Dr. Seuss’ In any event, two commentators argue buying this gloss? Perhaps you’d pre- short stories that preceded The Cat in the following: fer to consider the Cat’s film and liter- the Hat books as well as essays and re- ary archetypes, including the wizard in views that followed them. Many review- That question poses once again “The Wizard of Oz,” Professor Harold ers expressed disappointment in the first the dilemma of virtue’s relation Hill in “The Music Man,” and even Flem Cat, tsk-tsk’ing the mess he makes. It to authority. The question is pro- Snopes from Faulkner’s novels. The Cat should come as no surprise that sales of foundly disturbing to children, in the Hat also had historical forerun- the books to schools were disappoint- and for good reason. To choose ners, including the Russian Revolution. ing, but commercial sales boomed. The conventional morality in alliance According to one authority, “The Cat in Annotated Cat also takes in the books’ the Hat is a revolt against authority, but worldwide appeal, noting that the many reviews continued on page 54

July 2008 | The Federal Lawyer | 53 reviews continued from page 53 with authority is to surrender all Thomas Alva Edison (1847–1931) and standard practice, the Patent Office possibility of existential realiza- Alexander Graham Bell (1847–1922), would have treated Bell’s application tion. To be for no other reason who were “born just twenty days apart and Gray’s caveat as simultaneously than that they tell you to be is not in 1847.” Shulman’s project was all received. Pollok and Bailey, however, to be at all. On the other hand, the more feasible because of two re- convinced the office to deny the inter- children rightly understand the cent contributions to scholarship. The ference on the grounds—probably false reality of power in the world: In- Edison Papers at Rutgers University as well as irrelevant—that Bell had filed dividualized, direct confrontation (edison.rutgers.edu) is publishing its first. Bell got his first patent with what, with authority will surely fail. The holdings in print, on microfilm, and in comparison with other filings that child who would defiantly cel- digitally; as of 2008, six volumes have year, was blinding speed. On March 7, ebrate the Cat’s visit is doomed been published chronicling Edison’s life 1876, Bell was issued U.S. Letters Patent to awesome punishment, yet the from birth through 1883. The Library 174,465 for “Telegraphy” for an applica- child who contritely tells the truth of Congress, home to The Alexander tion that had been filed on Feb. 17. forestalls punishment at the price Graham Bell Family Papers, 1862–1939 That wasn’t all. The examiner in of self-respect. The other choice (memory.loc.gov/ammem/bellhtml), charge of electrical technology, the self- is to abandon the search for vir- has placed almost 5,000 digitized items described alcoholic Zenas Wilber, had tue altogether, making a pact with online, including Bell’s laboratory note- served with Marcellus Bailey in the Civ- powerful satanic forces in an orgy books from 1876, the year he applied il War. Wilber depended on his former of joyful self-gratification that will for and received the basic patent for comrade for occasional loans, which ultimately lead to empty despair. the telephone. was contrary to Patent Office policy Shulman never got very far with that examiners were prohibited from Could this be where the Critical Legal Edison. Instead, he puzzled over why having any financial dealings with the Studies movement had its origins? Ali- Bell had changed the direction of his attorneys who appeared before them. son Lurie is more commonsensical: the research after the trip to Washington, In an affidavit written a decade after implied answer is “Don’t tell Mother.” D.C., from which he returned with his the event, Wilber acknowledged hav- Whatever our answer is, at whatever first patent. In The Telephone Gambit, ing violated the rules by disclosing to age, the answer tells us more about our- Shulman follows his insight that the Bell the details of Gray’s caveat. Thus, selves than the story does. TFL drawing in Bell’s laboratory notebook Bell returned to Boston with his newly of his first telephone transmitter appears issued patent and began the series of Jon M. Sands is the federal public de- to copy a drawing in Elisha Gray’s ca- experiments that quickly led him to fender for the District of Arizona. veat, filed the same day as Bell’s patent come up with a working telephone, application. (Under U.S. patent practice something that had eluded him before The Telephone Gambit: Chasing at the time—until 1910—an inventor his trip to Washington. Alexander Graham Bell’s Secret who filed a caveat had a year to perfect By current standards of patentability, an invention. A caveat was thus similar Bell did not have the invention in his By Seth Shulman to today’s Provisional Patent Applica- possession when his patent was issued. W.W. Norton & Co., New York, NY. 256 pages, tion.) In addition, both the crucial claim to te- $24.95. The traditional story that we learn in lephony and the section of Bell’s speci- school has Gray filing his caveat later fication supporting that claim were ap- the same day that Bell’s filed his appli- parently an afterthought, as neither Bell Re v i e w e d b y Ha r o l d Bu rs t y n cation, causing Gray to lose the race. As nor Gray had been looking to invent Shulman shows, the facts do not support the electrical transmission of speech. In this exceptionally readable book, this story. It is likely that Gray filed his For both inventors, the telephone was Harold Shulman, a journalist who spe- caveat earlier in the day than Bell did. In a by-product of what they had sought: cializes in science and technology, tells any event, the practice of the U.S. Patent the simultaneous transmission of mul- how he found evidence that casts doubt Office was to disregard the exact time of tiple telegraphic messages over a single on the story of the invention of the tele- the filing if both documents arrived on line. So instead of working toward a full phone that we all learned in childhood. the same day. So why didn’t the Patent patent application, Gray filed a simple That this story was canonized in the Office follow its standard practice and caveat and continued to work on his 19th century in a series of legal cases declare an interference between Bell multiplex telegraph. And Bell added a makes it of special interest to lawyers, and Gray to determine who was the first claim to telephony as an afterthought particularly patent practitioners. inventor? Under U.S. law, then as well to his application for multiplexing As the first journalist invited for a as now, the first to invent, not the first telegraph signals. Yet Bell’s claim to year’s fellowship at the Massachusetts to file, gets the patent. telephony, in an application directed Institute of Technology’s now defunct The answer appears to be that Bell’s primarily to multiplexing, survived, de- Dibner Institute for the History of Sci- patent attorneys, Anthony Pollok and spite rigorous legal attack in the courts ence and Technology (1990–2006), Marcellus Bailey, had special clout at and a congressional investigation, en- Shulman intended to compare inventors the Patent Office. Had it followed its suring a monopoly long enough to

54 | The Federal Lawyer | July 2008 establish dominance in the telephone detail eluded the lawyers who fought Great Quotations That Shaped industry for the Bell interests. so hard in the late 19th century against the Western World All the details that Shulman fleshes the Bell patent monopoly. Shulman sug- out were known to Bell’s and Gray’s gests the answer, but he does not fol- By Carl H. Middleton contemporaries, though not with the low through with a full discussion. Until Paragon House, St. Paul, MN, 2008. 784 pages, clarity that Shulman brings to the story. the merger of law and equity effected $29.95. From a plethora of sources, published by the Federal Rules of Civil Procedure, and unpublished, including recent first issued in 1938, litigation did not scholarly investigations yet to enter the include discovery of documents. Bell’s Re v i e w e d b y Jo h n C. Ho l m e s mainstream, Shulman replaces the tra- antagonists were limited to depositions ditional account with one that is plausi- and cross-examination based entirely on Great Quotations That Shaped the bly truer to the facts. the public record. Bell’s notebooks, con- Western World contains more than its Bell, Gray, and their contemporaries taining what Shulman suggests was key title promises; its more than 5,000 quo- completely misunderstood what the fu- evidence, remained in private posses- tations are both accompanied by infor- ture would bring. Western Union had sion until after Bell’s death, when they mation about the people quoted and consolidated telegraphy in the United were deposited at the National Geo- interspersed with historical overviews States, making the company the domi- graphic Society, which he headed and and commentaries on their times. The nant player in communications, if not over which his descendants still preside. book’s longer first part is arranged in business generally. Unable to grasp Only Bell’s biographer, the late Robert chronologically and includes quota- the idea that telephony rather than te- Bruce, appears to have examined the tions from ancient Greek civilization, legraphy would link homes and busi- notebooks, but Bruce was too partisan the Middle Ages, the Renaissance, the nesses, in 1876 the company’s presi- to see in them what Shulman sees. Enlightenment, and on forward through dent, William Orton, turned down an Only in 1976, when the family do- modernism, postmodernism, and the in- opportunity to purchase Bell’s inven- nated the notebooks to the Library of formation age. The book’s shorter sec- tion for $100,000—a decision that was, Congress, did Bell’s papers become ond part is thematic, with quotations on as Shulman notes, “one of the worst open to public scrutiny. And only when investment wisdom and quatations from corporate decisions of all time.” the Library of Congress digitized them the Bible, as well as foreign phrases. Nevertheless, the Bell telephone in 1999 (with a grant from AT&T) did Many of the book’s quotations are business, which began under Alexan- scholars the world over get continuing famous ones, such as several excerpts der Graham Bell’s father-in-law and access. Still, it was left to a journalist, from Churchill’s speeches, some of Orton’s nemesis, Massachusetts law- albeit one working in a scholarly set- which can still cause goose bumps and yer and entrepreneur Gardiner Greene ting, to bring the full story to light. teary eyes. The excerpts contain phras- Hubbard, had no easy time establishing This is an important book for law- es such as, “I have nothing to offer but the dominant position that its successor yers to read. Shulman’s message is not blood, toil, tears, and sweat,” “This was AT&T has enjoyed to our own day. (See who did and who didn’t invent the their finest hour,” and “an iron curtain George David Smith, The Anatomy of telephone on which we rely day and has descended across the continent.” a Business Strategy: Bell, Western Elec- night. Rather, his story shows litigators The book also includes Churchill’s wry tric, and the Origins of the American how fundamental to the quest for truth saying, “History will bear me out, es- Telephone Industry (1985)). Only af- in the courtroom was the merger of law pecially since I intend to write it,” as ter favorably settling a lawsuit against and equity that brought forth modern well as his purported exchange with Western Union in 1879 and acquiring discovery. And, to patent practitioners, Minister of Parliament Bessie Braddock, its manufacturing arm, Western Elec- Shulman offers a cautionary tale about in which she said, “Winston, you are tric, did the Bell telephone companies how zealous prosecution can lead to drunk,” to which he responded, “Bes- become dominant. overreaching, which will be discov- sie, you’re ugly. And tomorrow morning Other lawsuits and a congressional ered, if not in a courtroom today, then I will be sober.” Other quotations in the investigation followed, and the Bell in the work of a probing historian to- book are from less famous people, such interests prevailed in all of them. By morrow. TFL as the English clergyman Sydney Smith 1910, when the canonical story of Bell’s (1771–1845), who admonished, “It is the first call—in which he said to his as- Harold L. Burstyn is in private practice greatest of all mistakes to do nothing be- sistant, Thomas Watson, “Come here; in Syracuse, N.Y. From 1996 to 2001, cause you can do only a little. Do what I want you”—first appeared in print, he was the patent attorney for the Air you can.” (Editor’s note: Smith also said, Elisha Gray was dead and AT&T was Force Research Laboratory in Rome, “I never read a book before reviewing the dominant, indeed the only, player N.Y. He teaches law to engineering and it; it prejudices a man so.”) in the telephone business. computer science students at Syracuse Getting back to famous people, in Shulman’s quest for the facts began University, where he researches the re- 1884, future Supreme Court Justice Oliver with his comparison of Bell’s notebook lation between patent law and the his- Wendell Holmes Jr. said, “We pause … entry of March 9, 1876, and Gray’s ca- tory of science and technology; he also to recall what our country has done for veat filed Feb. 17 of that year. A modern teaches the latter subject online. lawyer has to wonder how this crucial reviews continued on page 56

July 2008 | The Federal Lawyer | 55 reviews continued from page 55 each of us, and to ask ourselves what we Great Quotations That Shaped he opposes statism. He acknowledges can do for our country in return.” And the Western World chronicles human a conservative bias, which he claims Cary Grant is quoted as saying, “I pre- achievements in literature, history, re- contrasts with the liberal biases of most tended to be somebody I wanted to be ligion, science, philosophy, econom- other compilations of quotations, such until finally I became that person. Or he ics, politics, social science, military sci- as Bartlett’s Familiar Quotations, which became me. Everybody wants to be Cary ence, art, and business management. includes 37 quotations from Franklin D. Grant. Even I want to be Cary Grant.” Middleton is unabashedly outspoken in Roosevelt, 28 from John F. Kennedy, The book’s biography of Dean Rusk lauding the values of Western civiliza- but only three from Ronald Reagan. states the following, in full: “American, tion that have provided a level of eco- The book has two indexes, one secretary of state. In 1966 when de nomic prosperity previously unknown, chronological and one arranged by Gaulle took France out of NATO and and his book includes more quotations authors and events. More than merely ordered U.S. troops off French soil, Sec- from business people on economic a book of quotations, it is a history of retary Rusk asked if that included the theory and management than are typi- Western civilization told through the U.S. soldiers buried in Normandy. In cally found in collections of quotations. words of its greatest thinkers, writers, 2003, Colin Powell replied to the charge He also has a keen sense of humor, as politicians, business people, sports fig- of empire building in Iraq, ‘The only shown by two political quotations that ures, and others. The collection could land we have ever asked for in return he includes: “An honest politician is one become a classic. Can it also be a page- is enough to bury those that did not who when he’s bought stays bought,” turner? You bet! TFL return.’” Middleton’s pithy but effective and “Never believe anything until it’s of- biographical style is also evident in his ficially denied.” John C. Holmes served as a U.S. adminis- introduction to Abraham Lincoln, listing Middleton posits that the success of trative law judge for 30 years, retiring in Lincoln’s eight defeats for public office, Western civilization is not guaranteed 2004 as chief administrative law judge his two business failures, and his ner- and is currently under attack from with- at the U.S. Department of the Interior. He vous breakdown before being elected in by multiculturalists and from with- currently works part time as an arbitra- President with only 39.9 percent of the out by Muslim extremists. Middleton tor and mediator and can be reached popular vote. honors liberty and the rule of law, and at [email protected]. He is a longtime friend of Carl H. Middleton.

Federal Bar Association Membership Application Raising the Bar to New Heights TFL 6-08

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56 | The Federal Lawyer | July 2008