Vol. 76, No. 11, November 2003

Book Reviews

• Election Law Primer for Corporations, 3d Ed.
• Homeland Security Statutes
• Reporting Duties of Corporate Attorneys: SEC Rules and Explanations
• Romantics at War: Glory and Guilt in the Age of Terrorism

• To review a book

The Primer offers quick access to federal election law governing political activity by a corporation, with a nod to state laws. The work covers prohibited activity, political action committees, political communications, lobbying, tax considerations, and more.

As its title promises, this work renders a complex regulatory scheme as a set of simple rules. For example, readers will learn that a corporation's political action committee's "statement of Organization ... must incorporate the full, official name of the supervising corporation, including such abbreviations as 'Inc.' and 'Corp'." However, readers also will be alerted to several unsettled areas of law and given the means to delve deeper to solve more complex problems. Each chapter provides numerous citations to regulations and agency and Congressional rules.

Originally a pamphlet for laypersons, this third edition retains an unadorned style, as it stretches for the lawyer as well. The Primer reads like a series of pamphlets with its nine narrative chapters consuming only 67 pages. The remainder - appendices packed with useful forms and numerous Web sites - meets the needs of a practitioner seeking greater depth. The addition of a CD-ROM (containing the appendices with Internet links) could make this volume even more useful.

The Primer notes the most recent reforms effective in November 2002. However, with constitutional litigation still underway and other areas of law unsettled, the author contemplates ongoing developments will require a fourth edition well before the 2004 elections.

Given the author's distinguished career, readers would welcome real-life stories and insights on the competing interests and philosophies concerning corporate political activity. The author could season this worthy resource with a valuable perspective on the philosophy behind campaign finance reform, the evolution of the law, and constitutional implications in restrictions on political activity by corporations.

Homeland Security Statutes

Edited by Government Institutes Research Group (Rockville, MD: Government Institutes, 2003). 600 pgs. $89. Order, (301) 921-2323.

Reviewed by Natalia C. Walter

Homeland Security Statutes is a paperback compilation of statutes passed by the U.S. Congress between Oct. 26, 2001 and Nov. 26, 2002. The 614 pages include the October 2001 USA

PATRIOT Act (Short Title: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") and the Homeland Security Act of 2002, which completely reorganized numerous federal agencies, as well as six other statutes related to terrorism and national security. Even a quick review of the table of contents shows how far-reaching these new laws are in broadening government access to a wide range of information (educational records, electronic communications, voice mail, library records), as well as vastly increasing government authority to intercept communications and detain suspects without bond.

This book had promised to be a handy reference tool, its small size fitting nicely into a briefcase. Unfortunately, its organization is confusing and inadequate for either legal research or courtroom use. The statutes are not arranged in chronological order, and the pages fail to indicate section numbers, making it difficult to tell which part of which statute one is reading. The whole collection appears to have been hurriedly downloaded, with no useful subject index and no cross-referencing of the numerous sections of law that these statutes modify or replace. The compilation contains no introduction or preface; thus it is unclear whether this is a complete collection of terrorism-related laws or merely one editor's sampling.

More useful for practitioners would be a red-lined version of the affected statutes, with cross-referencing and a meaningful index. The gravity of the subject matter demands a more rigorous examination of homeland security laws and the many civil liberties implicated.

Reporting Duties of Corporate Attorneys: SEC Rules and Explanations

By James Hamilton & Ted Trautmann (Riverwoods, IL: CCH Inc., 2003). 76 pgs, $39. Order, (800) 248-3248

Reviewed by Erik R. Guenther

The Sarbanes-Oxley Act may be the most significant piece of legislation affecting corporate governance and financial disclosure requirements since the U.S. securities laws of the early 1930s. This book assists attorneys in understanding their reporting obligations when appearing before the Securities and Exchange Commission, as mandated by Sarbanes-Oxley Act section 307. The authors provide an easy-to-read reference guide that offers an explanation of these rules, with references to legislative comments, and they also provide a complete text of the final reporting rules. The book serves as an excellent quick reference guide to the recent reporting responsibilities when representing clients and appearing before the SEC.

An interesting section of the book is a description of the history of section 307 and the controversy surrounding its development. The rules, which took effect on Aug. 5, 2003, require attorneys to report "up the ladder" of the corporation if they find evidence of a material securities violation by the company or any of its directors, officers, or employees. The rules were designed to improve the accuracy and reliability of corporate disclosure to increase confidence in the securities markets. The rules cover attorneys who provide legal services to a company and have notice that documents that they are preparing will be filed or submitted to the SEC. The authors provide details as to the responsibilities of foreign attorneys, subordinate and supervisory attorneys, and corporate counsel, including a company's chief legal officer.

The book also discusses difficult situations in representation, such as when the individual to whom the attorney provides evidence regarding a possible material violation fails to take appropriate action or any action at all. The obligations of an attorney who works for a nonpublic subsidiary of a publicly-traded company also are discussed. Relevant terms such as the "reasonably likely" standard and "material violation" are defined and described effectively. However, the interplay between attorney-client privilege, an attorney's obligation for candor before the SEC, and the responsibility to the corporate entity as the client is interwoven throughout the text but is not as directly addressed as it warrants. For example, additional discussion of the major objections to the Act based on attorney-client privilege would have been worthwhile in providing an overall sense of the conflict in drafting section 307.

The book also reviews the rule permitting companies to establish a qualified legal compliance committee (QLCC) as an alternative procedure for reporting evidence of a material violation. Other issues that are discussed include the "policing authority" of the SEC, under what circumstances a covered attorney is authorized to reveal confidences directly to the SEC, "safe harbor" provisions, the lack of a private right of action under Sarbanes-Oxley, and sanctions for violations of the Act. Other informative topics focus on proposed rules that were ultimately rejected.

This book is a good primer on the reporting responsibilities of corporate attorneys. It provides clear guidance to assist attorneys and corporate counsel in understanding the basis and extent of their reporting obligations while serving their clients in securities law. While it is a useful reference for attorneys to begin their inquiry into these issues, attorneys who frequently handle securities law issues may find a more in-depth analysis necessary.

Romantics at War: Glory and Guilt in the Age of Terrorism

By George P. Fletcher (Princeton, NJ: Princeton Univ. Press, 2002). 224 pgs. $24.95. Order, (609) 258-5714.

Reviewed by Thomas Gilligan

September 11 has brought remote lands closer and made dated issues timely. We find ourselves, in this new "Age of Terrorism," confronted by difficult questions about war, crime, punishment, and guilt. George P. Fletcher, a jurisprudence professor at Columbia University, claims that Romanticism can help resolve those questions. He attempts to answer these questions through a revival of Romanticism, a philosophical and literary movement that identified grand causes, honor, and nationalism at the center of ideas about glory and guilt. Romanticism was apparently an 18th-century reaction to the rationalism that characterized Classicism and the Enlightenment. Unfortunately, my lack of familiarity with these movements and their foundations made reading Romantics at War a struggle.

Fletcher's presumptiveness is his weakness. He interweaves his arguments with philosophical or historical references that most readers will not appreciate, let alone recognize. For example, the casual reader is unlikely to remember the significance of Paul Ricouer's work in the Symbolism of Evil or appreciate the allusions to the linguist Benjamin Lee Whorf. During these confusing times, few can afford erudition for its own sake. Fletcher also has a tendency to lure the reader into thinking that a definitive conclusion is building or that an argument is being advanced, when in fact his arguments and examples move in fits and starts to the point of confusion. It is distracting and counterproductive to pepper a chapter with dozens of discrete historical, legal, or philosophical references, when just a few would serve the purpose.

However, Fletcher almost makes the book worth reading when he vividly illustrates his meandering arguments with historical references. For example, during World War II, eight German spies invaded the United States. Though few may remember, the spies were subsequently arrested, tried, and executed. Fletcher uses the example to parallel issues of current debate - whether to treat spies as unlawful combatants or prisoners of war, whether to try them before a military tribunal or a civilian court, how to address treason. These examples underscore the difficulties of reconciling war and crime, particularly when we are living in what has been characterized as a new era of warfare.

While it is unlikely that Romantics at War "will change how we think not only about world events, but about the conflicting individualist and collective impulses that tear at all of us," as the jacket cover grandly predicts, it does provide historical and philosophical reference to understand and appreciate the concepts of guilt and glory in an era of unconventional war.

Wisconsin Lawyer