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January/February 2007


The Constitution in a Time of National Emergency

By Richard A. Posner
Oxford University Press
171 pages, $18.95

Reviewed by Don Rogers

Not a Suicide Pact is the inaugural volume of a planned 14-volume Inalienable Rights Series to be published by Oxford University Press. The author, Hon. Richard A. Posner, is a well-respected judge sitting on the United States Court of Appeals for the Seventh Circuit, and is the author of many law-related books and articles. The book is in essence Judge Posner’s response to protests from civil libertarians and others against assorted actions taken by the federal government to address problems associated with global terrorism since 9/11, and presents his viewpoints concerning the inherent conflict between constitutional rights guaranteed to individuals and measures taken by the government for the protection of national security.

The book is organized into six chapters. Chapter One addresses the subject of how constitutional rights are created. Chapter Two discusses how concern for national security shapes and affects constitutional rights. Chapters Three through Six discuss specific constitutional rights and prohibitions, including constitutional rights guaranteeing free speech and privacy and constitutional prohibitions against detention, brutal interrogation, and unreasonable search and seizure, and their relationship to national security concerns and measures.

Judge Posner observes that constitutional rights, which he views as largely created by the Supreme Court as a result of “loose interpretation of the constitutional text,” can be and frequently are modified in response to changes in needs and conditions of the time, and “should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.” He argues that any national emergency, including but not limited to a war, or “what the current administration calls the ‘war on terrorism,’” (which the author  characterizes as not a conventional war in the sense of being a military conflict with a foreign state but nevertheless bearing the essential features of a war in that it is a violent conflict with a powerful and resilient enemy wanting to injure the United States and Europe, among other things) is the type of a changed circumstance indicating a need to readjust the balance and the respective weights of the competing interests of liberty and safety.

In readjusting that balance, he advocates “judicial modesty” as the approach that “should be the cornerstone of judicial interpretation of the Constitution in emergency situations.”  He points out that Supreme Court justices have “scant knowledge of national security, a deficiency that may make them lean too far either way—in favor of what they do understand, which is the legal tradition of protecting civil liberties, or in favor of upholding security measures because they don’t understand them.” In contrast, he says, “Congress knows more about national security and so may perform a more effective checking function on the president than the courts are able to do.”

He basically reaches the conclusions that (1) safety of the people is the supreme law and all other laws are subordinate to it, (2) the law must adjust one way or the other to necessity born of emergency, and (3) the measures taken by the federal government since 9/11 to combat the threat presented by terrorism do not violate the Constitution, with the sole exception of “the effort to deny the right of habeas corpus to U.S. citizens—a measure that the Supreme Court invalidated—and to foreign terrorist suspects captured in the United States.”

While mentioning various Supreme Court cases and federal statutes throughout and containing a substantial bibliography, the book appears to have been written as more of an intellectual discourse on the need to balance competing constitutionally guaranteed rights and prohibitions and other liberty interests with governmental actions deemed necessary to combat global terrorism and promote public safety than a legal reference work. It should be of interest to anyone concerned with basic constitutional rights and civil liberties. 

Don Rogers is an assistant district attorney assigned to the Appellate Division of the Harris County District Attorney’s Office. He is a member of the editorial board of The Houston Lawyer.


The Cybersleuth’s Guide to the Internet: Conducting Effective Investigative & Legal Research on the Web

By Carole A. Levitt, JD, MLS
and Mark E. Rosch
Internet for Lawyers, Inc. (2006) (8th ed.)

Reviewed by RUTH E. PILLER

Being the appellate nerd that I am, and since I spend some time most days mired in online research, I happily volunteered to review The Cybersleuth’s Guide to the Internet. Thumbing through the book, it is impossible to miss the Web sites identified on each page. Some are predictable (www.findlaw.com), but others are definitely surprising (www.findagrave.com).

The book’s first chapter provides the basics of internet use (e.g., “What exactly is a link?”) that elementary school children learn today by the third grade. It is highly unlikely today’s young lawyers could use such a primer, but those attorneys who only recently entered the computer age would be well-served by it. In general, some of the book’s chapters make for interesting browsing (“Our favorite search engines”) and (“Free investigative research resources: to locate & background people”). And thanks to the book, I’ve already bookmarked Cornell’s web site (www.law.cornell.edu/citation), which provides citation guidelines that are the closest thing to having the Bluebook online (which it is not).

However, I found the book was lacking in one specific area: I wanted a list of the Web sites it identifies. Specifically, I wanted a one-page list of the websites to hang near my computer. Such a list would make this book infinitely more helpful, as I cannot imagine looking through the book for a resource when I am actually attempting to write a brief for which I am billing a client. It simply would not be a productive use of time.

This book is a worthwhile and easy read for someone who has time to surf the Web on a regular basis. Too, some attorneys and paralegals might be intrigued by the chapter on finding experts and verifying their credentials. But in the day-to-day practice of writing briefs and summary judgment motions, this book -- which seems somewhat overpriced at $59.95 -- is never going to be as useful as Lexis or Westlaw, the various government and court databases (many of which are discussed in the book) and Google (also discussed in the book).

Ruthie Piller is a shareholder with the law firm of Hays, McConn, Rice & Pickering, where she practices civil appellate and general litigation. A former editor in chief of The Houston Lawyer, she is a member of the publication’s editorial board.


Texas Rules Of Evidence Manual – Seventh Edition

By Hulen D. Wendorf, David A. Schleuter, and Robert R. Barton
Juris Publishing, Inc. 2006
71 New StreetHuntingdon, New York 117431,408 pages, $155.00

Reviewed by Don Rogers

The Texas Rules of Evidence Manual – Seventh Edition is a one-volume, hard-bound text that presents a comprehensive analysis and discussion of the Texas Rules of Evidence for use by the Texas bench and bar. The book is formatted in the same manner as the rules of evidence for easy reference. The official text of each rule is set out in the same order as it appears in the rules, and is followed by an editorial commentary explaining how the rule works, what it requires or prohibits, differences in its application as between civil and criminal cases, and practice pointers. The commentary following each rule cites to associated cases from Texas and/or federal appellate courts in both civil and criminal matters, and, where applicable, discusses any difference between the rule and its federal counterpart.

The book is substantially useful to legal practitioners whether in or out of court and in connection with both civil and criminal cases. It is relatively compact, a feature making it easy to carry to court, and, while designed to be a quick reference, is nevertheless sufficiently comprehensive to make it a useful tool for legal research on evidentiary matters, at least as a starting point. Appendix A of the book contains the official text of the complete Federal Rules of Evidence, including advisory committee notes. The book is to be updated through annual pocket parts.

Don Rogers is an assistant district attorney assigned to the Appellate Division of the Harris County District Attorney’s Office. He is a member of the editorial board of The Houston Lawyer.


The Lawyer’s Guide to Balancing Life & Work:
Taking the Stress out of Success

Second Edition
By George W. Kaufman
American Bar Association 2006
261 pps

Reviewed by Janet H. Moore

Stressed after the holidays? If so, buy a copy of this helpful guide.

In The Lawyer’s Guide to Balancing Life & Work, George Kaufman imparts stress reduction wisdom learned in his 35 years of practicing law, and in his current work with the Omega Institute, the largest residential retreat and holistic study center in America.

Kaufman shares a lot of personal insights about his life in the book, starting with the stressful experience of being an associate at a major New York firm. The author also details how having debilitating Graves’ disease, which precluded him from reading for many months, caused him to reevaluate his priorities. These personal stories peppered throughout the book allow readers a very personal glimpse into Kaufman’s life.

Because Kaufman worked “in the trenches” as a lawyer, he can really relate to the pressure that his fellow lawyers are experiencing—whether they openly admit the pressure or not. The author notes, “In my experience, lawyers are hesitant to acknowledge the stressful nature of the work they do and resistant to the notion that the stress being experienced takes its toll on their well-being…I think of stress like the elephant in the workplace. It’s large, and obvious, and makes its presence felt. And yet we go about our daily business as though it didn’t exist.” (pps. 119-120)

The book details how lawyers tie their self-esteem to their professional achievement—often so strongly that they feel personally devastated by any “failure,” such as not making partner.

Kaufman also comments on some of the changes in the legal profession that have occurred since the first edition of the book was published in 2000. For example, he notes that the increased popularity of flex and part-time has improved many lawyers’ lives. However, in many other ways stress has increased, caused by greater difficulty in making partner, continued emphasis on per partner profits, and other factors.

The book includes many exercises that attorneys can do to reduce their job-related stress. Some of the suggested exercises help attorneys examine their values, develop awareness, express their creativity, create an action plan for moving forward, and the like. The exercises are conveniently loaded onto an accompanying CD for easy access.

Perhaps the best feature of this book is that it openly discusses exactly what many lawyers ignore. Any lawyer will come away from the book reassured that he or she is not alone in feeling stress, nd, thanks to the book, is equipped to reduce it.

Janet H.. Moore, JD, provides executive coaching and consulting for lawyers through International Lawyer Coach, Inc. She is a member of the editorial board of The Houston Lawyer.