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Holiday Law Books

These days practitioners in any legal concentration (ours being executive employment law) need to strengthen what Louis Nizer used to call their “lateral vision” by reading in areas of law, politics and current events they don’t encounter in the office. Fortunately, a number of my friends, some of whom are also attorneys, are, to borrow a phrase from Dorothy Parker, constant readers. They often tip me off to titles I might miss.

So here is the annual round-up of books on legal topics which have grabbed my attention this year and which you or someone on your holiday list might enjoy.

My pal Jonathon Warner, a commercial contingency attorney, gave me Ronan Farrow’s recent bestseller, Catch and Kill: Lies, Spies and a Conspiracy to Protect Predators (Little, Brown 2019), about the pursuit of the previously “untouchable” Harvey Weinstein in order to call him to account for years of predatory sexual behavior. Farrow’s compelling tale of high-priced lawyers and investigators co-opted by a wealthy client to scare or silence both accusers and investigating journalists is almost as disturbing as the underlying acts which the women have courageously exposed. In the early days of my career, I once had to deal with the real Roy Cohn, an incompetent bully, but some of the tactics described in this book show that his modern day heirs are alive and well. The electronic and physical spy methods they employ also suggest that “1984” was not a fantasy. A timely and deeply distressing book.

Under the patient tutelage of my colleague George Sheanshang, who represents notable entertainment personalities, I have spent this year trying — finally — to make my way through all of Marcel Proust’s masterpiece, In Search of Lost Time. I am now at the beginning of the fourth of seven volumes, and hope to finish the whole saga by the end of 2020. In Volume Three, The Guermantes Way, the narrator frequents the exclusive salons of the Parisian aristocracy in the 1890s, where the Dreyfus case is the most controversial topic of conversation. Wanting to learn the details of that historic controversy, I bought a soft cover copy of Piers Paul Read’s The Dreyfus Affair: The Story of the Most Infamous Miscarriage of Justice in French History (Bloomsbury 2013), a readable narrative of how Alfred Dreyfus, an innocent, deeply patriotic French army officer was convicted of treason on the strength of manufactured evidence, stripped of his rank and sent to the infamous Devil’s Island before public protest, led by the novelist Emile Zola, forced the government to re-open the matter, leading to Dreyfus’ ultimate exoneration. Dreyfus’ only “fault” was to have been Jewish, hence a target for the deeply anti-semitic French military establishment. Even given many indications of a flawed judicial process, Dreyfus’ fate hung in the balance for several years, during which he demonstrated a staggering amount of courage. When his accusers degraded him, one of them actually asked Dreyfus why he didn’t take his own life. Dreyfus responded that he would have if he had been guilty! At a time when the ancient prejudice against Jews is on the rise at home as well as abroad, the story this book tells is essential reading.

Another type of injustice is treated in Give Us the Ballot: The Modern Struggle for Voting Rights in America (Picador 2015) by Ari Berman, a powerful history of the Voting Rights Act of 1965. This law was enacted by Congress under the moral leadership of Lyndon Johnson after much of the nation watched with horror as dogs and billy clubs were turned loose on peaceful marchers headed by Martin Luther King, Jr., John Lewis and other civil rights pioneers. Designed to end a century of Jim Crow, the Voting Rights law made triumphant history until its evisceration by the Supreme Court almost half a century later, followed by the Court’s recent refusal to do anything about “gerrymandering” by either political party. If this book keeps the conversation about our fundamental democratic process alive, it will have served an important public purpose.  

Turning to fiction from an earlier era, although fiction with a realistic social basis.  Charles Dickens was not the only great Victorian author who included the law as a central component of his novels and stories. His friend Wilkie Collins also realized the inherent drama of law, as did that currently under-read master Anthony Trollope. My friend Josh Rubins, a copyright and securities litigator, has read thirty (!!) of Trollope’s novels, including some of the most obscure. Josh is the undisputed champ. I am slowly making my way through Trollope’s more celebrated titles. A good place to start is with the sequence of books called the “Palliser novels,” named for Trollope’s major character, the statesman (later Prime Minister) Plantagenet Palliser. Set in the years between 1865 and 1880, these six novels — written and to be read in the following order — Can You Forgive Her?; Phineas Finn; The Eustace Diamonds; Phineas Redux; The Prime Minister; and The Duke’s Children (all available in paperback in both Penguin Classics and Oxford World Classics) — present a matchless portrait of parliamentary and legal life in the mid-Victorian era. Readers of his great contemporaries Dickens and George Eliot  may find Trollope’s almost documentary style dry at first, but these books are so consistently interesting, showing the life of their times as well as timeless human nature, that after only a few pages, you will, I predict, be totally hooked. We care about the characters and are eager to find out what happens to the conflicted Alice Vavasor; the crooked, scheming Lizzie Eustace; the poor but magnetic Irish politician Phineas Finn; the stiff title character Plantagenet Palliser (who, considering his aristocratic lineage and great wealth, is a surprisingly unassuming technocrat devoted to public service) and his flamboyant wife Lady Glencora. Trollope’s description of legal proceedings include an Old Bailey trial in which Phineas Finn is accused of murder, as well as the efforts of an aristocratic family’s solicitor to recover a fabulous diamond necklace from a wily interloper. Less mythic than Dickens, but more realistic and no less suspenseful, Trollope also offers intriguing, thinly-veiled portraits of the great political figures of his day, including Gladstone (“Mr. Gresham”) and Disraeli (“Mr. Daubeny”). If our current politics have become too fraught for you, treat yourself to an escape in these beautifully constructed time machines.

Before we leave the legal world of the late 19th century, consider The Trial of Lizzie Borden: A True Story by Cara Robertson (Simon & Schuster 2019). The world of Lizzie Borden is closer than it seems. My grandparents, who lived into the late 1960s, were all alive in 1892 when Lizzie was accused of the brutal axe murders of her beloved father and her not-so beloved stepmother in Fall River, Massachusetts. Is this the most famous American crime for which no one was convicted, topping even O.J. Simpson? It certainly still generates heated controversy, well over a century after Miss Lizzie was tried by a jury of her (all-male) peers. I formerly went through my own Lizzie Borden obsession, and could walk you, question by question, through Edgar Lustgarten’s analysis of the cross-examination of the Borden’s maid, Bridget Sullivan, a witness examination which should be studied by every aspiring lawyer. So I am familiar with this particular mania, which the author of the latest re-telling apparently contracted as a college student and which led her to write this book. Surprisingly, despite degrees from Harvard and Oxford and her service as a U.S. Supreme Court clerk, Ms. Robertson still writes sufficiently good English to craft a worthy narrative of the famous courtroom drama. Was justice served? Don’t ask me, but this book provides both a good introduction for new fans, as well as a refresher course for old Borden hands who want to hear the story again, including some brand new details: the Massachusetts authorities (damn yankees) were so cheap that they made the jury walk much of the way, in sweltering heat, to view the crime scene rather than hire carriages for them! On a personal note, may I suggest that the only viable alternative to Lizzie as the culprit is her older sister Emma, but that’s another book!

Back to the future, or at least the present. Joan Waricha, CEO of Parachute Press and doyenne of the popular “Goosebumps” series of children’s books by R.L. Stine, gave me In Vino Duplicitas: The Rise and Fall of a Wine Forger Extraordinaire by Peter Hellman (Workman 2017). This is a quick but enjoyable read about a young man from a self-proclaimed wealthy Malaysian family who insinuated his way into the “confidence” of a group of elite wine connoisseurs by being endlessly willing to crack open one or more bottles of rare burgundy worth many thousands of dollars per bottle in order to distribute generous “pours” to his guests. I don’t judge other people’s lawful pleasures but the notion of pouring that much money down one’s gullet makes me bilious. Still, it’s intriguing — at a distance — to see how some very rich people pass the time. As you may have guessed by my scare quotes around the word confidence, the young man turned out to be a major scammer, re-filling old bottles, manufacturing phony labels and topping off many a modest contemporary pinot noir with a few inches of better stuff so as to pass off the resulting product at fine wine auctions as legendary (but non-existent)  bottles of Romanée-Conti from the 1940s. How he was detected by a few irate purchasers, including one of the Koch brothers, apprehended by the FBI and sent away for a long, presumably dry spell in a Federal prison is the subject of this book, which you can finish in a few sittings. It’s always worthwhile to remind ourselves that what looks too good to be true usually is. As Herman Melville wrote in his late novel The Confidence Man: No Trust!

My last and strongest recommendation as the old year wanes is We The Corporations: How American Businesses Won Their Civil Rights by UCLA law professor Adam Winkler (Liveright 2018). Several years ago, Professor Winkler wrote Gunfight, which told the story of how the NRA cleverly positioned the case in which the Supreme Court was persuaded to rule that the Second Amendment created a right to keep firearms independent of any connection with their use in a militia. That was a terrific book, a beautifully written history both broad and deep. His new book, We The Corporations, is even better. It relates the historical and legal background to the controversial Citizens United decision, which allows corporations virtually unlimited spending on political candidates who will advance their business aims. You thought this country was founded by heroic religious dissenters seeking liberty of conscience? Winkler points out that business entities were already established in America even before the Mayflower set sail. Indeed, a decade before the Puritans stepped on Plymouth Rock, a very much for-profit corporation, organized as a “start-up” on behalf of merchant adventurers in London, set up shop in Jamestown, Virginia. In the next four centuries, as a result of a series of historical ironies and not a little legal sleight of hand, these business corporations became “persons” with their own constitutional protections, such as the right of free speech, religious liberty, due process and the protection against unreasonable searches and seizures, among others. Corporations can’t vote — yet. This story has profound ramifications for our democracy, and Winkler is a gifted researcher and graceful writer. If anyone doubts Calvin Coolidge’s famous statement (accurately rendered according to the Yale Dictionary of Quotations) that “After all, the chief business of the American people is business,” they should read this book, a finalist for the National Book Awards. Winkler also makes a variety of legal niceties understandable to any informed citizen, not only lawyers. 

Speaking of which, did you and your family celebrate the recent “Love Your Lawyer Day” (I kid you not)? Now tell the truth. Even my dog skipped that one, although she grudgingly recognizes that her supper bowl is filled, in part, by the labors of executive employment attorneys.

Lisa, Marc, Terri and I wish you and your loved ones the happiest of holidays, and a healthy and satisfying 2020!

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.