Cat paws & baby formula

March 25, 2009
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From IL reporter Michael Hoskins:

Every so often, court rulings offer hidden treasurers that tickle the mind with intrigue rather than simple legalese and legal theory. Take Wednesday's two examples from the 7th Circuit Court of Appeals. Neither appeal stems from Indiana, but attorneys and readers in general can appreciate the decisions and the humor, mystery, and just fun-natured elements contained within.

It all comes down to “cat paws” and 81,454 cans of powered baby formula.

The first case comes from the Eastern District of Wisconsin, in the appeal of grocery wholesaler Kaloti Wholesale. Judge Richard Posner is the author. But the fun comes with the full title: United States of America, Plaintiff, v. Approximately 81,454 Cans of Baby Formula, Defendant. In case you aren't sure, "defendant" is appropriately attached clarifying any confusion about who or what’s being sued here. The case itself involves a February 2007 warehouse raid that uncovered the many thousands of cans of powered baby formula, which agents believed were stolen from retailers. Labels with the "use by" date were stripped off or altered. The government filed a civil forfeiture suit that's still pending in District Court, but the appellant asked the judge for permission to sell the baby formula on grounds that its "use by" dates were approaching - 80 had already expired, and the rest are slated for expiration by year's end.

Judge Lynn Adelman denied the motion on the ground that the sale might endanger any babies who ate it, and this appeal soon followed. Judge Posner and his panel affirmed that decision.

A second 7th Circuit decision today comes out of the Central District of Illinois in Vincent E. Staub v. Proctor Hospital, an Illinois corporation. This is a military-leave suit filed under the Uniformed Services Employment and Reemployment Act, with Staub claiming the hospital wrongly fired him as an angiography technologist. He alleged the hospital discriminated against him based on his Army reservist role, not the insubordination, shirking, and attitude problems cited in his termination.

Authored by Judge Evans, the opinion begins:

"One would guess that the chances are pretty slim that the work of a 17th century French poet would find its way into a Chicago courtroom in 2009. But that’s the situation in this case as we try to make sense out of what has been dubbed the “cat’s paw” theory. The term derives from the fable “The Monkey and the Cat" penned by Jean de La Fontaine (1621-1695). In the tale, a clever-and rather unscrupulous-monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat’s paw is a “tool” or “one used by another to accomplish his purposes.” Webster’s Third New International Dictionary (1976). More on this a little later."

We won’t trouble you here with a synopsis of the whole opinion - you can read all about the legal issues and theory in the 21 pages. But here’s a spoiler for the ending: The panel reverses and remands the case with instructions for judgment in favor of Proctor Hospital.

These are two favorites we have for the week, but if you’re so inclined, pass along any other fun reads that you’ve noticed.
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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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