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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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