Seventh Circuit Week in Review, Part I: Of Brothels and Woodsheds

The Seventh Circuit had a busy week, with eight new opinions in criminal cases.  In this post, I’ll discuss three that deal primarily with substantive criminal law issues.  A subsequent post will cover the sentencing and procedure cases.

Two of the opinions in this post deal with the difficult and important question of whether it is money laundering when a brothel purchases advertising.  But, before getting to that question, I’ll discuss a case that offers an unusual dressing-down of a federal prosecutor.  (There’s actually a pun in that last sentence — read on to see what I mean.)

The legal question in United States v. Farinella (Nos. 08-1839 & 08-1860) was whether those “best when purchased by” labels you find on food packages really mean anything to consumers.  Do they indicate that spoilage is imminent, or are they essentially meaningless marketing devices, akin to claims that a product is “new and improved?” 

Farinella, the defendant, purchased 1.6 million bottles of “Henri’s Salad Dressing” for resale at so-called “dollar stores.”  He presumably bought them at a discount because the bottles were past, or at least fast-approaching, the “best when purchased by” date stamped on each bottle by the manufacturer.  The manufacturer’s label would obviously make resale more difficult, but Farinella solved this problem by covering the original labels with new labels listing a later purchase date.  Of course, no one would hold this up as a model of business ethics.  But was it a federal crime?

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The Sex Crimes Panic

I have a new paper on SSRN regarding the seemingly endless fascination of American legislators with sex crimes.  Here is the abstract:

Sex crimes continue to be a matter of intense legislative interest at both state and federal levels of government, as evidenced by a flurry of recent enactments expanding sex offender registration requirements, prohibiting sex offenders from participating in “Halloween-related” activities, and facilitating the exclusion of sex offenders from social networking websites. Although legislative activity in the area of sex crimes has gone through regular phases of high and low intensity across the past century, the current high-intensity phase, dating from the 1980s, has lasted an unusually long time. Moreover, this high-intensity period displays the characteristics of what historians and sociologists have termed a “moral panic,” marked particularly by the rapid adoption of many new laws that seem poorly designed to achieve their community-protection aims. This Essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to recent developments in the punishment and management of sex offenders (Vol. 21, Issue 2), offers a critical overview of the new laws and considers why the sex crimes panic has proven so much more durable than the crack cocaine panic, which also arose in the 1980s.

Laws aimed at controlling sex offenders are invariably couched as child-protection measures — and, really, who can vote against protecting children? — but pay little attention either to the social scientific evidence regarding the greatest threats of sexual violence to children (family members and acquaintances, not the random strangers caught in the ever-widening web of sex-offender registration laws) or to the possibility that scarce criminal justice resources are being increasingly diverted from more productive uses to dubious new social control measures.  Sex offenders, of course, will draw no public sympathy when it comes to legislative overreaching, but in the current fiscal climate all taxpayers have an interest in ensuring that new laws are cost-effective responses to serious social problems.  And, as the New York Times recently reported, fiscal concerns seem to be driving a backlash against one of the more misguided recent enactments in this area, the so-called Adam Walsh Act.

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Sports Paternalism

Matt Mitten has an interesting new paper on SSRN entitled (this is a mouthful!) “Student-Eligibility Rules Limiting Athletic Performance or Prohibiting Athletic Participation for Health Reasons Despite Medical Uncertainty: Legal and Ethical Considerations.”  The paper discusses two policy problems in intercollegiate athletics that both turn on how much paternalism is appropriate in preventing student-athletes from doing things that may ultimately prove harmful to themselves. 

The first problem is use of steroids.  Although performance enhancing drugs are often condemned for giving some athletes an unfair advantage, Matt suggests that unfair advantages are an unavoidable feature of intercollegiate athletics, noting, for instance, disparities in coaching and training facilities.  Moreover, after reviewing the medical evidence, Matt concludes that “currently there are no definitive scientific or epidemiological studies evidencing that a healthy adult’s usage of anabolic steroids in appropriate dosages necessarily will have life-threatening or long-term serious health effects.”  But, of course, the absence of conclusive evidence of danger does not mean that steroids are safe.  Given uncertainty, the question is whether athletes should be permitted to decide for themselves whether to bear the risk.

The second problem is participation by student-athletes suffering from a medical condition (e.g., a spinal or cardiovascular abnormality) that may give rise to increased risks of serious or life-threatening injury.  Again, the question is one of paternalism in the face of medical uncertainty: should the athlete himself or herself be given the right to decide whether to bear the risks?  As with the steroid issue, Matt ultimately concludes that the NCAA and individual universities have “valid legal and ethical authority” to protect student-athletes from themselves.

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