| Book Reviews |

Lincoln and the Constitution he who is a man may, as a matter of treat rebel property after the Union self-government, do just as he pleases Army seized it. Congress passed the By Brian R. Dirck with him. But if the negro is a man, First and Second Confiscation Acts Southern Illinois University Press, Carbondale, is it not to that extent, a total destruc- declaring that such property was for- Illinois, 2012. 168 pages, $19.95. tion of self-government, to say that he feited to the Union. The constitutional too shall not govern himself?” Lincoln problem was whether it could be used arguments such as this not only confiscated permanently. Article III, Re v i e w e d b y He n r y S. Co h n against popular sovereignty, but later section 3, of the Constitution prohibits against Justice Roger B. Taney’s opin- forfeiture as a punishment for treason Brian Dirck’s Lincoln and the ion in Dred Scott v. Sandford that “except during the Life of the Person Constitution is a departure from his members of the “negro race” were attainted” (the rebel slave owner). previous book, Lincoln the Lawyer, “altogether unfit to associate with the Lincoln feared that heirs of slave own- which pictured Lincoln as a folksy, white race either in social or political ers might claim that the Constitution pragmatic Western populist. In his relations, and so far inferior that they had been violated if their property new book, Dirck shows how Lincoln’s had no rights which the white man was taken. At Lincoln’s request, there- constitutional thinking increasingly was bound to respect, and that the fore, Congress passed a joint resolu- matured, as he considered issues such negro might justly and lawfully be tion, which became law the same as the expansion of slavery into the reduced to slavery for his benefit.” day as the Second Confiscation Act territories, the right of states to secede When Lincoln became President, (July 17, 1862), providing that the from the Union, the President’s war his views of the Constitution became Second Confiscation Act shall not be powers, and postwar reconstruction. less tied to the Declaration of “construed as to work a forfeiture of In his early career, as a strug- Independence. According to Dirck, the real estate of the offender beyond gling attorney, Lincoln revered the Lincoln now “saw the Constitution his natural life.” Dirck inaccurately Constitution because it had been and the rule of law it represented as writes that Congress “amended” the drafted by men he regarded as a vehicle designed to get Americans Second Confiscation Act (rather than heroes for having risked their lives somewhere, some place higher and enacting a separate joint resolution), in the Revolutionary War. Starting in better than where they had been: a and he writes as if the joint resolu- 1854, however, when enactment of more perfect union.” Saving the Union tion applied to slaves, and not just to the Kansas-Nebraska Act prompted became his goal, as he strongly reject- real estate. Section 9 of the Second Lincoln to become politically involved ed Confederate President Jefferson Confiscation Act declared that slaves in the fight to keep slavery out of the Davis’ opinion that it was a “mon- who escaped to Union lines “shall be territories, he gave deeper thought strous fiction” that, in 1787, the states forever free,” and the joint resolution to the Constitution. The Kansas- had “acted as one people ‘in their did not change that. Nebraska Act had been designed by aggregate capacity’” rather than “as Next, Lincoln determined to go Sen. Stephen A. Douglas to allow set- distinct and sovereign political com- further toward freeing the slaves. He tlers in those two territories to deter- munities.” decided that to deprive the Confederacy mine through “popular sovereignty” Lincoln’s exercise of his presidential of its slaves’ labor and to allow the whether to permit slavery in each powers as he tried to lead the Union to slaves to join the Union army was a territory. Lincoln developed his views victory met with some knotty consti- military necessity that could be imple- on the Constitution in his 1854 speech tutional problems. One issue was the mented pursuant to his power under in Peoria, Ill., in his 1858 debates with power to suspend the writ of habeas Article II, section 2, as the commander Douglas, and in his 1860 Cooper Union corpus. Soon after the war began in in chief of the Army and Navy. On address. Lincoln saw the Constitution April 1861, with Maryland’s pro-Con- Sept. 22, 1862, he issued a prelimi- as the “silver frame” designed to federate citizenry preventing Union nary Emancipation Proclamation stat- preserve the “golden apple” of the troops from reaching Washington, ing that, on Jan. 1, 1863, all slaves in Declaration of Independence. The D.C., and with Congress out of ses- any state that remained in rebellion Declaration of Independence stated sion, Lincoln took the position that he “shall be then, thenceforward, and that the government derives its pow- could suspend habeas corpus without forever free.” He kept his word and ers from the consent of the governed, congressional approval, even though issued the Emancipation Proclamation but slavery violated this principle by Justice Taney, in Ex parte Merryman, on the date promised. allowing a master to govern his slaves found that, because the power to sus- As the Civil War neared its end, without their consent. As Lincoln said pend is in Article I—the part of the Lincoln realized that his war pow- in his Peoria speech, “The doctrine Constitution that governs Congress—it ers might not be sufficient to ensure of self government ... depends upon belongs only to Congress. the demise of slavery, so he lobbied whether a negro is not or is a man. ... Lincoln also had to navigate a con- Congress to pass the 13th Amendment. If he is not a man, why in that case, stitutional minefield to decide how to Although the Radical Republicans saw

66 | The Federal Lawyer | October/November 2012 the amendment to imply a national and their clerks, illuminating how the nature of the judicial profession pro- guarantee of basic citizenship rights, personal relationships between jus- hibited him from voicing elsewhere.” Lincoln took a more conservative tices and clerks affect the Court. The Holmes, therefore, expected his clerks approach and sought merely to end contributors—some of them former to be “familiar with recent cultural slavery. After his death, the Radicals Supreme Court law clerks—include and intellectual developments.” Under Republicans would succeed with law professors, judges, academics, Justice Louis Brandeis, a law clerk’s the adoption of the 14th and 15th and legal journalists, and they provide duties expanded, and Brandeis’ clerk- Amendments. first-hand accounts of the inner work- ship model was the precursor for the Lincoln was pleased with Congress’ ings of the justices’ chambers. The modern clerkship institution. passage of the 13th Amendment (the book is divided into three parts: “The Every justice has had a distinc- states adopted it after Lincoln’s death), Origins of the Clerkship Institution,” tive approach to tackling the cham- telling a celebratory crowd on Feb. 1, which discusses, among other jus- bers workload, including deciding 1865, that “this amendment is a King’s tices, Holmes, Brandeis, and Cardozo, how much writing a clerk would do. cure for all evils” of the war. “[I]t winds and their clerks; “The Premodern Andrew Kaufman writes that Justice the whole thing up ... the fitting if not Clerkship Institution,” which discuss- Benjamin Cardozo made pre-argument indispensable adjunct to the consum- es, among others justices, Black and work the clerk’s major responsibility, mation of the great game we are play- Frankfurter, and their clerks—includ- but did his own legal research and ing.” In April 1865, Lincoln advocated ing the first female clerk; and “The opinion writing. Cardozo was produc- giving “the elective franchise ... to the Modern Clerkship Institution,” which tive, often writing his opinions on a colored man”—conferring it imme- discusses clerking for Warren, White, pad while pacing. Kaufman explains diately “on the very intelligent, and Marshall, Powell, and others. that Cardozo would have a draft on on those who serve our cause as sol- For recent law school graduates, Sunday, which his “clerk-secretary” diers.” John Wilkes Booth was in the a clerkship on the High Court is an would type the next day. But Cardozo audience for that speech and reacted opportunity of a lifetime, because this was a private person, and he seems to Lincoln’s proposal by seething to a highly coveted position offers keys to never to have had a close relationship fellow conspirator, “now, by God! I’ll the doors of power. Almost every law with his clerks. put him through.” clerk is hired primarily on the basis of In their essay, Todd Peppers and Dirck concludes that, “[w]hile academic achievement, is a graduate Beth See Driver write that Felix [Lincoln] greatly valued and cherished of a top-tiered law school, and has Frankfurter, with his serious demean- both the Constitution and the rule of clerked for a U.S. Court of Appeals or, considered the law clerks to be his law it represented, it was always for judge who is a personal friend or a junior partners. Frankfurter believed him a means to a higher, greater moral former clerk of the Supreme Court that it was not a good use of time to end—some ‘apple of gold.’” We should justice for whom the clerk works. have clerks reviewing petitions for be grateful to Dirck for explaining how Increasingly, clerkship committees at certiorari, and instead he wanted his Lincoln’s worship of the Constitution law schools also push select appli- clerks to draft opinions. Frankfurter translated to government policy during cants. would tell the law clerks what the his administration. TFL In the summer of 1875, Chief case was about, where he stood, and Justice Horace Gray became the first what he wanted, and he would, of Henry S. Cohn is a judge of the Con- U.S. Supreme Court justice to hire course, review the clerk’s draft. necticut Superior Court. recent law school graduates, but he Justice Hugo Black did most of his hired three of them as legal secretaries own legal research, and, “[w]hen he without legal duties and he personally was assigned a case for an opinion, he In Chambers: Stories of Supreme paid their salaries. Moving forward in immediately plunged into reading the Court Law Clerks and Their time, Scott Messinger explains that, record and all the briefs.” He drafted Justices for Oliver Wendell Holmes Jr. as well his own opinions and discussed the as for Gray, a clerk did not dispense drafts with the clerks, but he usually Edited by Todd C. Peppers and Artemus advice on legal matters or help to “had his mind made up on the sub- Ward draft opinions, but, for Holmes, nei- stance” and “[d]ebate was mainly on University of Virginia Press, Charlottesville, ther was he a mere secretary. Rather, choice of words and organization,” VA, 2012. 472 pages, $34.95. his job was to minister to the justice’s with “a surprising amount of contro- needs “in a wide variety of private versy about commas.” According to and professional matters. Such duties Daniel Meador, who clerked for Black, might be as pedestrian as helping his boss saw his role as defender of Re v i e w e d b y Ha r v e y Ge e Holmes to balance his checkbook, the Constitution and protector of the but they could also be as interesting individual, and Meador remembers In Chambers: Stories of Supreme as providing him with a live audi- that Black freely shared his views with Court Law Clerks and Their Justices is ence for his opinions about his fel- his clerks. a collection of previously published as low justices or about the politics of well as new essays on select justices the day—opinions that the cloistered reviews continued on page 68

October/November 2012 | The Federal Lawyer | 67 reviews continued from page 67

According to contributor Judge Georgia, Inc. He was a U.S. Supreme human details that make trials and John M. Ferren, Justice Wiley Blount Court Fellows Program Finalist, 2012. their aftermath the compelling dramas Rutledge Jr. and Justice Frank Murphy that they are: Black’s wife fainting at took more expansive views of individ- his resentencing; the line of prisoners ual rights than did the other two lib- Tilted: The Trials of Conrad cheering Black when he was released eral justices of the 1940s, Hugo Black Black (2nd ed.) on appellate bond; Amy St. Eve, the and William O. Douglas. Rutledge’s judge at Black’s trial, sitting in the writing was “eloquent but ... splendor- By Steven Skurka Supreme Court during oral argument ous,” tending “to embrace long sen- Dundurn Press, Toronto, Ontario, 2011. 348 of the case; and Black’s assistant and tences, as well as redundant clauses pages, $26.99. a defense witness selling T-shirts out- and unnecessary adjectives.” side the courthouse that read “Conrad A clerk’s working for a term with Will Win.” a justice and his or her co-clerks can Re v i e w e d b y El i z a b e t h Ke l l e y If you read only one chapter of create bonds that remain indelible. Tilted, make it the first, which is a no- Hugo Black and his clerks would eat As legal issues swirl around media holds-barred analysis of the American lunch together in the public cafeteria mogul Rupert Murdoch and his embat- legal system. Some readers might be on the ground floor of the Supreme tled newspaper, News of the World, offended that an outsider is voicing Court building, with the justice often this is a particularly good time to read these criticisms, but others might find displaying his sense of humor as he the second edition of Tilted: The Trials Skurka’s criticisms valid. He expresses told tales of his law practice, senato- of Conrad Black, by Steven Skurka. dismay at our system of discovery rial campaign, and time as a senator. Skurka is a Toronto-based criminal and the way that information is either Some justices invited clerks to their defense lawyer and a legal analyst not disclosed at all or not disclosed homes, considering them part of their for Canadian Television (CTV). He in a timely manner. He marvels at extended family, and, after the clerk- covered the trial of Conrad Black that our over-incarceration and our ever- ship term, maintained relationships was held in 2005 in federal court in expanding criminal laws. He can’t with their clerks through reunions. Chicago. Black, along with several get over the huge number of cases In Chambers is at its best when it co-defendants, was charged with mul- that resolve in a plea rather than go discusses the intimate confines of judi- tiple counts of defrauding his com- to trial. But perhaps his biggest criti- cial chambers, showcasing the justices’ pany, Hollinger International, of $60 cism is of the extraordinary sentences sometimes-quirky personalities and million. After a jury trial that lasted defendants receive for being convict- work habits. In his contribution, “Fifty- approximately three months, he was ed after exercising their constitutional Two Weeks of Boot Camp,” Bruce convicted of fraud and obstruction of right to a trial instead of pleading Allen Murphy describes the tumul- justice. As Skruka covered the trial, guilty. Indeed, the word “tilted” in the tuous relationship between William he struck up an acquaintance with title refers to the fact that, to Skurka, O. Douglas and his clerks. Douglas Black. the system seems extraordinarily tilted expected his staff to work hard, and Conrad Moffat Black is a Canadian- in favor of the prosecution. earned the reputation of being one of born member of the British House Tilted is fun to read, and, if you the most demanding justices to work of Lords. Before his trial, he was the care about the future of our criminal for. Douglas would often yell at and third-largest newspaper publisher in justice system, it is also important to scold his law clerk. “Everyone in the the world. After he was released from read. TFL office feared Douglas’s unpredictabil- federal prison in the spring of 2012, ity and wrath over missteps, both real he vowed to fight to clear his name. Elizabeth Kelley is a criminal defense and perceived. He wasn’t the sweet- Tilted follows Conrad Black’s trial attorney in Ohio. She has a special est person you’d ever want to meet.” as well as the labyrinthian post- commitment to representing individu- In his defense, Douglas was a hard conviction proceedings: his appeal als suffering from mental illness and worker and expected the same from to the Seventh Circuit, the decision mental retardation. She frequently his clerks. by the U.S. Supreme Court to nar- provides legal commentary for TruTV, In Chambers illuminates the nuts row the scope of the honest services CNN, and MSNBC, and she is host of and bolts of serving as a Supreme fraud statute and remand the case for Celebrity Court Radio on BlogTalkRa- Court law clerk, and it provides a peek re-sentencing, the resentencing itself, dio. She also serves on the board of the into the relationships between justices and Conrad Black’s return to prison National Association of Criminal De- and clerks. Even regular Court watch- after having been released on appel- fense Lawyers and is chair of its Men- ers may be surprised by the nuggets it late bond. tal Health Committee and former chair offers of this exclusive world. TFL What makes Tilted more than just of its Corrections Committee. She can a chronicle of a criminal case ’round be contacted at ZealousAdvocacy@aol. and ’round the “appeal-go-round,” as com. You can listen to her interview Harvey Gee is an attorney with the Fed- with author Steven Skurka at www. Skurka calls it, are the wonderfully eral Defenders of the Middle District of tobtr.com/s/3404277.

68 | The Federal Lawyer | October/November 2012 Life Among the Cannibals: A cal, given the changing nature of the him on election eve on Alaska radio, Political Career, A Tea Party Up- GOP. The very title of the book shows criticizing the behavior of the pros- rising, and the End of Governing that there is no doubt as to where ecutors. Indeed, Specter proved pro- as We Know It he stands. It derives from what he phetic, given the release last March observes was the growing and alarm- of the special counsel’s findings of By Sen. Arlen Specter with Charles Rob- ing practice of senators campaigning misconduct by Department of Justice bins against members of their own cau- prosecutors during the investigation Thomas Dunne Books, New York, NY, 2012. cuses: “And they did it with relish, like and trial of Sen. Stevens. 384 pages, $26.99. cannibals devouring colleagues with A reader will find it impossible to condiments.” The opening sentence of pigeonhole Sen. Specter. Not only did the preface continues that theme: he switch parties, but he has been all over the map when it comes to Re v i e w e d b y El i z a b e t h Ke l l e y The United States has provided issues. For example, I found myself worldwide negative leadership cheering his criticism of the treatment I was in law school during Justice in amassing gigantic annual defi- of detainees and of warrantless wire- Clarence Thomas’ confirmation hear- cits and a staggering national tapping, yet groaning over his support ings. For me, as for many Americans, debt, resulting in the emergence for the death penalty. But perhaps it those hearings were a transformative of the Tea Party, which pro- is the confidence that he built dur- experience. To this day, some people duced gridlock and a dysfunc- ing five terms as a senator that led cannot stomach former Sen. Arlen tional government. European him to march to his own drummer Specter for his questioning of Anita nations followed the U.S. lead and not feel beholden to anyone. As Hill. Indeed, the very name of Arlen in spending more than taxpay- he notes in the book, “Reagan lost Specter inspires strong reactions, ers were willing to pay, produc- Philadelphia by 225,000 votes, while whether from conservatives blaming ing economic crises in Ireland, I won Philadelphia by 14,000.” And him for preventing the confirmation Spain, Portugal, Italy, and riots Sen. Specter had no illusions about of Robert Bork to the Supreme Court in Greece. the meanness of Washington, D.C. He or from the National Association of quotes Harry Truman: “If you want a Criminal Defense Lawyers honoring Specter paints in vivid detail the friend in Washington, get a dog.” him in 2008 with its Champion of decline and disappearance of mod- Nonetheless, it was sad to read Justice Award. erate Republicans—and moderate about promises broken and friend- Life Among the Cannibals is a Democrats—in the Senate. But he also ships severed after he switched par- political biography, but, more fun- describes the decline in senatorial col- ties. The opening chapter, which damentally, it is a biography of a legiality in general. This was the man tells the story of his last election day, senator who was trained as a lawyer, who rode the train with Sen. Joseph from the time the polls opened until worked as a lawyer, and has never Biden and spent time in the Senate his concession speech that evening, stopped being a lawyer. Indeed, most gym with Sen. Edward Kennedy. This reads like a general’s last battle. Yet, of the landmark events in this book socializing made them all more pro- during that final campaign, Specter are connected to the law. Specter ductive legislators because their social kept a physical pace that would rival quotes his former law partner as say- relationships, combined with common that of a person one-fourth his age. ing that Specter will be remembered political ground, forged bipartisan Merely reading that first chapter made for developing the single bullet theory compromise and action. me tired! as a young lawyer on the Warren Many of Specter’s actions were Sen. Specter remains active; he Commission and for his questioning courageous as well as touching. When practices law and teaches a course of Anita Hill. The senator adds that Sen. Robert Packwood of Oregon on the relationship between Congress he will also be remembered for vot- was virtually abandoned by every- and the U.S. Supreme Court at the ing “not proven” during the impeach- one because of allegations of sexu- University of Pennsylvania Law School. ment trial of President Clinton. Life al harassment, it was Sen. Specter’s I hope that he will also pursue a cause Among the Cannibals is an enjoyable office that Sen. Packwood’s staff called he has long advocated: the televising and educational portrait of the five- when they feared that their boss was of Supreme Court proceedings. TFL term senator from Pennsylvania and going to commit suicide—and Specter of the intersection of law and politics hurried to Packwood’s office. When Elizabeth Kelley is a criminal defense throughout his career. Sen. Larry Craig of Idaho was exposed attorney in Ohio. She has a special com- Politics drove Specter to write this for an embarrassing incident in a mitment to representing individuals book. The then 79-year-old sena- Minneapolis airport restroom, Specter suffering from mental illness and men- tor was defeated in the Democratic encouraged Craig to get an attor- tal retardation. She frequently provides primary after having switched from ney and attempt to vacate his guilty legal commentary for TruTV, CNN, and the Republican to the Democratic plea. And, when Sen. Ted Stevens of MSNBC, and she is host of Celebrity Party—a move that was consistent Alaska was convicted of seven counts with his ideology as well as practi- of corruption, Sen. Specter defended reviews continued on page 70

October/November 2012 | The Federal Lawyer | 69 reviews continued from page 69

Court Radio on BlogTalkRadio. She also ous material and adds 34 more chap- uncivil behavior on the balance of the serves on the board of the National As- ters, expanding the treatise by 3,800 case and the client. sociation of Criminal Defense Lawyers pages. The updated chapter on case and is chair of its Mental Health Com- When the treatise was first pub- evaluation by Louis M. Solomon of mittee and former chair of its Correc- lished, some of the topics were just Cadwalader, Wickersham & Taft LLP tions Committee. She can be contacted developing. For example, The Federal provides a helpful discussion of the at [email protected]. Lawyer featured an introductory arti- different roles that the client, in-house cle on e-mail discovery by Timothy Q. counsel, and litigation counsel play Business and Commercial Liti- Delaney of Brinks Hofer Gilson & Lione in the evaluation of the strengths and gation in Federal Courts: Third the month before Judge Marshall’s weaknesses of a commercial lawsuit. review appeared. E-discovery is now As all experienced litigators know, Edition a major component of commercial liti- unrealistic expectations can disrupt Edited by Robert L. Haig gation. The management of litigation, the litigation process and affect the Thomson/West, Eagan, MN, 2011. 12 volumes, in-house, intra-firm, and by insurers result of a lawsuit. The case evalua- with forms on CD-ROM, $1351.00. has become increasingly important tion tools that the author presents will as the cost of litigation escalates. We not only help litigators evaluate a case have witnessed the transformation of but also will assist them in working civility and professionalism from aspi- with their clients, in-house counsel, Re v i e w e d b y Th o m a s R. Sc h u c k rational goals to mandated standards and risk managers to make impor- of behavior and subjects of profes- tant decisions in evaluating settlement In the February 1999 issue of sional discipline. opportunities and options. The Federal Lawyer, retired district The second edition expanded the The revised chapter on electron- court judge Prentice H. Marshall wrote work’s scope to include the cultural ic discovery by district court judge of the first edition of Business and and ethical issues that commercial Shira A. Scheindlin and Jonathan M. Commercial Litigation in Federal litigation presents today. For instance, Redgrave covers not only the issues Courts that it “should be at the hand the recently updated chapter on ethi- that arise during commercial litigation of every lawyer who is faced with cal issues in commercial cases, by but also the (perhaps more impor- litigation in the state or federal courts, Harry M. Reasoner, George M. Kryder, tant) issues of prelitigation planning, every federal trial judge, and every and Edward A. Carr of Vinson & records and information management mediator or arbitrator of complex Elkins LLP, covers the issues that policies, the preservation of data, and commercial disputes.” High praise should be discussed with the client other practical considerations that if indeed—and as true of the newly from the outset of a case through the not identified and addressed in a published third edition, ably edited by litigation process, including lawyer timely manner can have devastat- Robert L. Haig, an experienced com- disqualification and withdrawal. The ing consequences later. The chapter mercial litigator with Kelley Drye & authors provide a helpful checklist of also includes a section on claims for Warren LLP. professional responsibility consider- the spoliation of evidence; this sec- The first edition (1998) included ations that every commercial litigator, tion is relevant to traditional record 80 chapters covering many aspects no matter how much experience he retention and discovery as well as to of commercial litigation and related or she has, would do well to review electronic data storage. The checklist issues such as employment discrimi- periodically. The chapter on civility, that accompanies the chapter provides nation, intellectual property, prod- by Michael B. Keating of Foley Hoag a good introduction to the technical uct liability, antitrust, and RICO. The LLP, takes a practical approach to issues involved in electronic data stor- second edition (2005) revisited these this issue. It focuses on the effects age and retrieval. It will prove useful areas and included 16 new chapters of uncivil behavior on the litigation not only to the commercial litigator on case evaluation, electronic discov- process, including the economics of but also to the client and its employ- ery, litigation avoidance and preven- litigating and the choices that an ees who are responsible for respond- tion, techniques for expediting and attorney has to make in responding to ing to electronic discovery requests. streamlining litigation, litigation tech- it. It includes a checklist that focuses The third edition adds chapters nology, litigation management by law on the importance of making rational, on internal investigations; a compari- firms and corporations, civility in the unemotional decisions in responding son of commercial litigation in state practice, director and officer liability, to uncivil behavior and on consider- and federal courts; coordination of mergers and acquisitions, broker-deal- ations such as whether the forum has litigation in state and federal courts; er arbitration, partnerships, commer- tolerated rude behavior in the past international arbitration; crisis man- cial defamation and disparagement, and would be receptive to a formal agement; pro bono representation; commercial real estate, government motion, avoiding casting the judge regulatory litigation with the Securities entity litigation, and e-commerce. The in the role of “babysitter,” and con- and Exchange Commission; deriva- third edition (2012) updates the previ- sidering the impact of responding to tives; commodities and futures; medi-

70 | The Federal Lawyer | October/November 2012 cal malpractice; re-insurance; consum- and it includes checklists, sample accompanying disc that provides elec- er protection; licensing; occupational pleadings and forms, and sample jury tronic access to all forms, jury instruc- safety and health claims; immigra- instructions. Current American Bar tions, and checklists in the treatise. tion; executive compensation; food Association President William T. “Bill” When I reviewed the second edi- and drug; privacy and security; prior Robinson III of Frost Brown Todd tion of this book in the June 2007 restraint of speech; federal claims LLC has contributed a new chapter on issue of The Federal Lawyer, I wrote based on land use regulation; white medical malpractice that discusses the that, if I had to choose one word to collar crime; the interplay between action from commencement through describe Business and Commercial commercial litigation and criminal discovery, mediation, and trial, with Litigation in Federal Courts, it would proceedings; money laundering; the practice materials that include an be “practical.” This remains true of the Foreign Corrupt Practices Act; export initial client interview checklist, affir- third edition. It not only contains the controls; the Alien Tort Statute and mative defenses, discovery requests, law but the wisdom and advice of its the Torture Victim Protection Act of a voir dire outline and checklist, and 251 principal authors, among whom 1991; the False Claims Act; administra- jury instructions. Theodore V. Wells are 22 judges and a cross-section of tive agencies; government contracts; Jr. and Roberta A. Kaplan of Paul, the best commercial litigators in the tax, project finance and infrastructure; Weiss, Rifkind, Wharton & Garrison United States. Every business litigator, sports; entertainment; and information LLP have authored a new chapter on no matter how seasoned, will benefit technology. As this list of new topics the interplay between commercial from consulting this work not only suggests, it was impossible for the litigation and criminal proceedings for the technical information that it authors and editor simply to revise the that deals with such practical issues provides but also for its advice on second edition by means of pocket as the decision to assert a privilege, the intangible aspects of litigation parts—the 2010 pocket parts for some including the privilege against self- such as client relations, professional of the chapters ran to more than 50 incrimination; discovery in parallel obligations, and effective relationships pages. Accordingly, the third edition civil and criminal proceedings; the with colleagues and judges. Business represents a substantially new work, role of collateral estoppel in dual and Commercial Litigation in Federal not only updating the second edition proceedings; the informer and law Courts belongs in the library of every but significantly expanding the scope enforcement privileges; the interplay lawyer and law firm that engages in a of the treatise. between civil damages and criminal significant amount of commercial liti- For example, the new chapter on restitution; and double jeopardy. The gation in the United States. TFL internal investigations by Gregory authors include a detailed discussion A. Markel and Jason M. Halper of of the WorldCom Inc. litigation in the Thomas R. Schuck is a past president Cadwalader discusses the purposes, wake of WorldCom’s announcement of the Federal Bar Association. He is scope, and conduct of investigations in June 2002 that it needed to restate a member of Taft Stettinius & Hollister by companies and their agents of alle- its publicly reported financial results LLP in Cincinnati, where he practices gations of corporate misconduct, and and its bankruptcy filing a month primarily commercial and bankruptcy includes practice aids for conducting later. litigation. an internal investigation and sample These new chapters illustrate the Securities and Exchange Commission expanded scope and depth of the lat- and Department of Justice documents. est edition of this treatise. Space does The new chapter on international not permit a discussion of all the new arbitration by federal district Judge chapters; suffice it to say that all of Paul A. Crotty and Robert E. Crotty them, like the chapters retained and of Kelley Drye supplements the dis- expanded from the second edition, cussion of arbitration versus litiga- have been authored by distinguished tion updated from the second edition judges and leading practitioners who and addresses best practices, ethical not only are familiar with the issues rules, and sanctions, as well as the discussed but also contribute to the role of professionalism in arbitra- development of the law in their tion. My partners Thomas T. Terp respective areas of interest. and Kim K. Burke at Taft Stettinius As one would expect of a work & Hollister LLP have authored a of this breadth and depth, the tables new chapter on occupational safety and index are comprehensive and and health claims that covers all helpful. Volume 12 includes tables of aspects of Occupational Safety and proposed jury instructions; forms of Health Administration rules—includ- pleadings, orders, and other important ing enforcement proceedings and documents; and extensive information related issues such as whistleblower on statutory and case authority. In claims and retaliation claims—as well addition, the treatise includes research as the Sarbanes-Oxley Act of 2002, references. Equally important is the

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