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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Progressive Originalism

The March 14 edition of the Wall Street Journal carries an interesting story regarding efforts to use “progressive originalism” in upcoming precedent-potential cases. The Journal reports that the Center for Constitutional Accountability, a progressive public interest law firm run by Doug Kendall, and several liberal-leaning legal academics have undertaken a sustained effort to revive the Privileges or Immunities Clause of the 14th Amendment. The Journal reports:

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

The Journal’s report struck me as particularly interesting when juxtaposed alongside an article authored by Marquette alumnus Keith Alexander (BA ’98, MA ’00) and published recently in the Texas Review of Law and Politics. In developing an argument regarding the federal partial birth abortion ban, Alexander focuses on the original meaning of the 14th Amendment’s Equal Protection Clause:

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The Assault Upon the Citadel

I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)].  In that regard, it probably has had even more of an effect on me than any of my own articles.

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

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