Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:



Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:

"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.

While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

Hutson & Harris: "Don't Eat Your Weed"

From the Wall Street Journal Law Blog, I learned of this excellent video from Will Hutson and Chris Harris of the Texas law firm, Hutson & Harris:



As the surprisingly talented attorneys note, destruction of evidence can put somebody on a fast track to getting in even more trouble during a traffic stop. Those with marijuana in a vehicle should stop to think about the legal ramifications of eating everything in the ashtray.

The Law Blog notes that Texas is the home of some innovative attorney advertising, including the loud, patriotic, hawk-scream-filled commercials of Bryan Wilson (here and here). Texas has some competition for the most outrageous legal ads, however, as Georgia attorney Jamie Casino's Super Bowl advertisement ranks as one of the strangest, compelling, and memorable things I have seen on television.

Judges: Don't Be Afraid to Give Out Candy on Halloween

From Texas Supreme Court Justice Don Willett's wonderful Twitter feed, I learned about this entry in the American Judges Association Blog. It reports on this 2013 story from the Milwaukee, Wisconsin Journal Sentinel. From the article:

Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.
More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy. 

"Green argues that this indirect contact may have caused the jury 'to view Mr. Green’s case as a ‘we vs. them’ matter,' especially given the gang-related evidence," the court wrote in a per curiam decision. 

. . .

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge. 

"The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact," the appeals court found. "There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff."

Unfortunately, this case says nothing about judges providing attorneys with Halloween candy. But if a judge were to provide candy to attorneys on all sides of the case he or she was presiding over, I suspect that this evenhanded treatment would avoid any appearance of bias.

Moreover, a quick perusal of the California Code of Judicial Ethics reveals numerous mentions of gifts, but the Code notes that "gifts" are defined as things "of value." If you were to ask me, this would clearly apply to candy, but an ethics board might not share my priorities. Moreover, the Code of Judicial Ethics places numerous restrictions on judges' receipt of gifts, but there seems to be a  lack of discussion regarding judges' giving gifts. So it appears that my candy recommendation may survive ethical scrutiny.

So judges, feel free to give candy to attorneys as well as jurors! At the very least, this practice may result in some interesting judicial ethics test cases.

CONFLICT OF INTEREST ALERT

The author of this post frequently appears in court in front of judges who, if they were to follow the author's recommendations, would give candy to the author. Therefore, the claims and recommendations in this post should at least be taken with a grain of salt -- and it may be even more prudent to regard every claim in this post as entirely untrue.

"A Proposed Ban on the Sale To and Possession of Caloric Sweetened Beverages by Minors in Public"

That's the title of this article by James G. Hodge Jr., Leila Barraza, Susan Russo, Kellie Nelson, and Greg Measer. Here is the abstract:

Obesity is the definitive epidemic of the modern era in the United States. Its well-documented public health impacts, especially related to children and adolescents, are horrific. Nearly one-third of American minors are overweight; over 50% of them are obese. Already, these kids suffer from multiple adverse physical and mental health conditions. Sadly, absent serious communal and individual interventions, their lives may be cut short compared to their own parents’ life expectancy. While recent surveillance suggests childhood obesity may be trending down slightly in some populations, public health experts remain concerned about the threat obesity poses to the health of America’s youth.

This abstract sounds uncontroversial, and doesn't do justice to the article's attention-grabbing title. So here is a selection from the introduction that more accurately reflects the paper's content:

In the sections below, we take apart and analyze the legal and policy issues underlying a proposed ban on the sale to and possession of CSBs by minors in all public places. To the extent our proposed ban is legally viable, buttressed by available scientific evidence on the harms related to minors’ consumption of CSBs, closely tied to reducing gains in childhood obesity, and already in place in select school districts, it reflects the future of public health policy within and across states.

Some thoughts:

First, the article admits that current policies to reduce the consumption of sugary drinks by children are not succeeding. One reason for the lack of success is that "public opinion" stalls the progress of reform -- which presumably means that people tend to resist passage of restrictions on sugary drinks. The article claims that a full ban on sweetened drinks will succeed where these other restrictions have failed. But it is unclear how a complete ban would overcome the same obstacle of public opinion, especially if public opinion is enough of a barrier to frustrate less-exhaustive bans. Accordingly, it is unclear how this complete ban "reflects the future" of public health policy.

Second, on page 112, the authors state that their ban would not apply to fruit drinks to which no sugar has been added. But administering this ban would be quite difficult, since even single brands of fruit juice may contain varieties in which no sugar is added, and varieties with added sugar. Moreover, those varieties with added sugar may not be obvious -- since it has been my experience that only the varieties without added sugar have labels proclaiming the lack of such sugar. Customers who are under 18 would need to differentiate between these different varieties of drinks, and this same differentiation would need to be carried out by the store's cashiers. The breadth of the authors' definition therefore threatens to create a great deal of confusion for both customers and store employees.

Third, on that same page, the authors state that their definition of "caloric sweetened beverages" applies to milkshakes. This shocks the conscience.

Fourth, the ban would only apply to beverages that are sweetened with "caloric" sweeteners. This would exempt diet sodas from the ban. It is therefore difficult to see how a ban on both the purchase and public possession of these beverages could be enforced. Say a store has a soda fountain that is out of the immediate sight of the store clerk. A mischievous minor could claim that the drink he is purchasing is a diet soda, when in fact it is a regular soda. How is the clerk to verify that the minor is telling the truth?

And say that a police officer spies a group of youths outside a local gas station sipping on beverages that appear to be soda. The authors of this paper propose a ban that would apply to the possession of sugary drinks by minors in public. But how is the officer to determine whether the minors' drinks are regular or diet sodas? There must be some way for the authorities to enforce this new law -- perhaps the authors are suggesting that officers taste young people's beverages. Instead of "stop and frisk," perhaps officers will "stop and sip" minors' beverages in an effort to determine whether their drinks are calorie-free, or carbonated contraband.

The authors are correct to point out the problems caused by childhood obesity. And they are correct to claim that an outright ban on sugary drinks would probably be within state governments' powers. But despite their promise to explain every component of the ban, these six coauthors are unable or unwilling to confront the very apparent objections that this ban would be politically unfeasible and unenforceable.

Childhood obesity is a problem. A complete ban on the sale and possession of sugary beverages is a radical solution. Defending the feasibility of this solution requires more than three full pages of text.

Jimmy John's Sprouts Class Action Results in Cookie Settlement

These are the terms of a settlement agreement reached by Jimmy Johns in light of a recent class action lawsuit filed against the sandwich chain.

Heather Stark claimed that she ordered a sandwich containing sprouts and did not get sprouts on her sandwich. Rather than ask for sprouts or a new sandwich, Stark did what any red-blooded American would do and sued, arguing (according to the settlement agreement):

 (1) interference with contract; (2) intentional misrepresentation; (3) negligent misrepresentation, (4) fraud; (5) violation of California’s False Advertising Act, California Business and Professions Code sections 17500, et seq.; (6) violation of California’s Business and Professions Code sections 17200, et seq.; (7) Violation of California’s Consumers Legal Remedies Act, Civil Code sections 1750, et seq.; and (8) Violation of the federal Lanham Act, 15 U.S.C. § 1125. 

As a brief note on the last count of the complaint, it has always been my understanding that consumers typically lack standing to sue under the Lanham Act, and causes of actions arising under this statute are limited to business competitors (see, for example, commentary on the law here and here).

Unfortunately, lawyers would probably charge tens of thousands of dollars to make that point in court. So Jimmy Johns has proposed a settlement agreement which you can read here. Here is the part that everybody should know:

Without admitting liability, Defendant has agreed to provide vouchers to any Jimmy John’s restaurants, with a face value of $1.40 and good for any side item (pickle, potato chips or cookie) or soda, to all participating claimants who timely complete the online claim form available on www.jimmyjohns.com, up to a maximum of $725,000.00 less the actual costs of the settlement administration.

The rest of the settlement agreement goes on to say that the fairness of this settlement will be evaluated in court on December 4, 2014.

Admittedly the vouchers can be used to purchase a variety of items, but the quality of Jimmy John's cookies renders all the other options void. Because of this, and because I am mindful of those who have suffered without sprouts, I encourage my readers to pay careful attention to the progress of this litigation.

Sandwiches as Economic Indicators in Political Debate

NPR has an article entitled The 2014 Club Sandwich Index. From the article:

Because it is a recurring motif on the menus of fancy country clubs and haute hotels, the club sandwich is also a key economic indicator these days. To wit, Hotels.com has developed the Club Sandwich Index to determine the relative expensiveness of cities around the world. 

The 2014 results — of the third annual survey — have just been released. For the CSI average price, researchers tallied the prices of club sandwiches at hotels in 28 different countries. The most expensive club sandwiches in the world are served in Geneva, where the average cost is about $33. In New York, the cost for a club is close to $18. 

"The Club Sandwich Index offers travelers a simple price comparison to show how far their money may stretch in each country," Kate Hopcraft of Hotels.com said in a statement. "The next time you're tucking into a club in Geneva, remember you could have three more for your money in New Delhi."

This reminded me of an incident last month where Congress caught a little flack after several members used Big Macs and charts with pictures of burgers purported to be Big Macs to illustrate inflation during a debate.

But this was not the first instance of a Congressional debate over food. The NPR club sandwich article links to this historical highlight from the Archives of the House of Representatives where members of Congress debated over the contents of club sandwiches in the House Restaurant:

Representative Charles Underhill of Massachusetts strode to the well of the House with two sandwiches. In support of the House Restaurant’s funding request, put forth by Underhill’s Committee on Accounts, he compared the House club favorably with one from a local cafeteria. Newspapers reported his rousing defense – “Look at the size of this piece of chicken and compare it with this piece of chicken in our own restaurant, and with this larger piece of chicken, and large piece of toast, more mayonnaise, tomato and lettuce, we get only 5 cents more for our sandwich.”

We will have to wait and see if Congress switches to the club sandwich index in light of NPR's report.

UK Court: Greek Yogurt Needs to be From Greece

The BBC reports:

Chobani, a US-based yoghurt manufacturer, cannot label its UK products Greek as they're made in the US, according to a UK court ruling. 

A three-person panel upheld a lower court's ruling that the "Greek yogurt" label misled customers. 

Chobani's yoghurt is strained a number of times to give it a thicker texture, which the firm has said is typical of a style found in Greece.

Dairyreporter.com has additional coverage of the case, including several quotes from the ruling itself.

I have not heard of any similar lawsuits in the United States, although Alison Keeley's post at American University's Intellectual property brief clued me in on this firm's attempt to possibly put together some sort of lawsuit based on the "Greek" label. There has been at least one lawsuit against Chobani after Keeley's post, but that suit seemed more focused on Chobani's claim to use all-natural ingredients and whether Chobani's labeling adequately reflected the yogurt's ingredients.

Would this type of lawsuit succeed in the United States? My understanding, at least based on what I know about the Lanham Act, is that plaintiffs would need to prove that using the term "Greek" in labeling yogurt would tend to mislead customers into thinking that the yogurt is actually from Greek, rather than simply being "Greek-style" yogurt. (See 15 U.S.C. 1125(a)(1)(A), and for a good primer on the Lanham Act, see here).

Whether the "Greek" label misleads customers into thinking the yogurt is actually from Greece would be a question of fact that plaintiffs would need to prove. Personally, I always take "Greek yogurt" to mean the Greek-style of strained yogurt rather than yogurt that is actually from Greece. But maybe plaintiffs could show that many consumers do indeed think that the yogurt is from Greece.

New Canadian Regulations Threaten Importation and Sale of Irn Bru and Bovril

The BBC reports:

The owner of a British food shop in Canada says he has been ordered to stop selling Marmite, Ovaltine and Irn Bru because they contain illegal additives.

Other affected products include Lucozade, Penguin Bars and Bovril.

. . .

The Canadian Food Inspection Agency (CFIA) is reportedly cracking down on the sale of such goods and increasing its inspections of suppliers.

Irn Bru contains at least one additive - Ponceau 4R - which has been linked to hyperactivity and does not appear on the approved food list in Canada.

The other products are banned because they are "enriched with vitamins and mineral" while some canned foods and soup contained too much animal product.

Sounds like these are troubling times for those with British and Scottish culinary inclinations. But the CFIA is now conducting evaluations of the banned products to determine if they are safe.

While Irn Bru, rather than Bovril, seems to be the star of this story, I cannot post about a story like this without an honorary citation to Watteau v. Fenwick, 1 QB 346 (1892), where a pub manager, Humble (who was the agent of the pub's owner, Fenwick), bought Bovril and cigars even though he had not been given the authority to make these purchases. The seller thought that Humble owned the bar and did not realize that he was anybody's agent. In the absence of Humble's actual authority or apparent authority (as the seller did not realize that there was any principal involved), the court held that Fenwick was still liable for the purchases, concluding that in cases like this, the principal is liable for all acts which are within the authority usually confided to an agent of that character.

I have not traveled extensively, so I did not know what Bovril was until last year, when Stephen Bainbridge gave an extensive and opinionated description of the product when he taught Watteau in his Business Associations class. For any reader who is still unfamiliar with this product, Wikipedia seems to give a thorough and accurate account.