Photo of Stephen McConnell

When we had the Monday gig we had the option of blogging on most of the major holidays. We say “option” because we could have honored the holiday by not blogging at all, but that seemed too indolent even for us. We usually split the difference by not doing any heavy lifting. There would be some vague reference to recent legal developments, without the usual piercing analysis you have come to expect from us (okay, from all of us except this particular scribe). There would be a couple of lame allusions to popular culture. Then there would be a heartfelt holiday greeting at the end. It became something of a tradition. Why stop now?

Despite, or maybe because of, our former Monday stint, we developed an enhanced respect for those holidays that resisted the Monday fetish. Veterans Day is an example. When we were employed by the federal government, it was the one holiday we got that almost nobody else got. Maybe precisely because it is seldom part of an extended weekend and mini-vacation, the meaning of Veterans Day is more insistent. There are plenty of veterans among our friends and family, and on that peculiar, isolated day-off in November it invariably seemed like a good idea to pick up the phone and call them. And then there’s Christmas, of course. That holiday will never be shoe-horned into the Monday rotation. Neither will Halloween. (Is it just us, or has Halloween over the last 25 years leapfrogged over Easter and Thanksgiving to become the second-biggest holiday? Putting aside whatever controversial religious aspects swirl around it, has Halloween become the absolutely perfect festival of imbecility?)

Now that we have resumed blogging and moved to the Wednesday spot, we are delighted to take the keyboard on July 4th, our favorite holiday. It is the mid and high point of the BBQ troika, and usually has better weather than Memorial Day or Labor Day. We say “usually.” Not so much this year, at least not in the Delaware Valley. The thunder and lightning are predicted to humble any human-generated fireworks display. So we’ll celebrate our nation’s birthday by grilling indoors, eating Mexican appetizers and German sausages, and drinking Italian wine. When the political discussion gets too heated, we’ll turn on the Comedy Central marathon of the most patriotic episodes of “30 Rock,” “South Park,” and “It’s Always Sunny in Philadelphia.” Philadelphia does July 4th better than anywhere else. We have the Welcome America festival, with music by that most American of musical groups, The Roots. The Independence Hall Tea Party will host its fourth annual Independence Day rally, “Celebrate American Exceptionalism.” The Occupy folks promise some sort of orchestrated chaos. And because the Occupy movement is all about chaos, there will also be an event where an unendorsed Occupy spin-off called The 99 Percent Declaration will hold a Continental Congress 2.0 to petition the government for redress of grievances. Good times.

We unashamedly believe in American exceptionalism. How can we not, given what we do? Every week, the advance sheets furnish further proof that our legal system is a uniquely powerful expression of the marvels and pathologies of American culture. There is a new book out called America the Philosophical by Carlin Romano. Romano argues that Americans have elevated pragmatism to philosophical heights. We think there is less to this thesis than meets the eye, but it does put us in mind of those scenes in Apollo 13 where the scientists at the Space Center in Houston improvised brilliant solutions, not by sitting around theorizing, but by taking the relevant physical materials and seeing what they could do with them to save the astronauts’ lives. The great Jacob Bronowski said that “the hand is the cutting edge of the mind.” It’s a pragmatic technique and it works. But if pragmatism is mostly technique, what end does that technique serve? Here we have nothing more weighty to offer than something we all already know: Americans love freedom. Freedom to do what? Pretty much anything, no matter how righteous or risible. We visited Hong Kong over 20 years ago, before the handover, when it was thought to be the most open economy on earth. That’s what Milton Friedman believed, and who are we to dispute a Nobel prize winner? Here was a place where products competed on their merits, not hamstrung by tariffs or cultural or governmental barriers. All kinds of products from everywhere were advertised and sold. Sure enough, Japanese electronics and cars adorned neon signs on many of the buildings. French luxury goods abounded. What American goods were ascendant? Fast food, cigarettes, and movies. Conclusion? Americans are really, really good at fun stuff that is not necessarily good for you. You decide. This Hong Kong visit was before Apple triumphed with the iPod, iPad, etc., so now add those goodies to the list. The point remains. America is, in some high-tech, hyperactive, crazy way, still faithful to Paine, Jefferson, and those other long-haired troublemakers. For that all-too-short speck of time when we galumph around the planet, each of us should be able to take our best shot at pursuing happiness. The legal system is supposed to help us do that, partly by facilitating voluntary transactions, and partly by preventing or punishing fraud and force.

We’re not going to wade very far into the debate over the SCOTUS decision that mostly upheld the Affordable Healthcare Act. There are a lot of things that can be said about both the opinion and the reaction to the opinion. Speaking of pragmatism, we’ve heard or read a lot of commentators who accuse Chief Justice Roberts of pursuing a pragmatic result in a manner similar to that other, earlier Supreme Court Justice Roberts, who performed the “switch in time that saved nine.” Maybe Chief Justice Roberts was worried about how it would look if there were a string of decisions where the five Republican-appointed justices always voted to overturn Democratic laws and the four Democrat-appointed justices always voted to uphold them. Or maybe Chief Justice Roberts decided to rewrite the law to insert that tax zinger. Or maybe Chief Justice Roberts was weary with Justice Kennedy always being the swing vote. Or maybe he really believes his analysis. We can debate it all day long, now and for the next 50 years. The liberal vs. conservative perspective does not get one very far on this issue. Not only do we have Justice Scalia on the other side of the fence from Chief Justice Roberts, but we also have the two smartest legal thinkers of our time (yeah, yeah, our University of Chicago bias is undeniable) — Judge Posner and Professor Richard Epstein — lobbing in shots at what Chief Justice Roberts hath wrought. We hope we do not sound like nihilists or technicians when we confess that this is sort of fun. This Summer we are going to the cradle of philosophy and democracy, Greece, but we bet their courts do not offer the grist for the intellectual mill that ours do.

Meanwhile, on a day when we eat mountains of hot dogs, we tremble in the face of the class action lawsuit recently filed in Minnesota state court (removed to federal court) against ConAgra alleging that Hebrew National brand frankfurters are not kosher. The complaint contains causes of action for negligence, violations of consumer protection laws, and breach of warranties. Throughout the 195-paragraph complaint, the plaintiffs repeatedly allege that the packages falsely represent that the hot dogs consist of 100% kosher beef “as defined by the most stringent Jews who follow Orthodox Jewish Law.” The complaint manages to quote from both Upton Sinclair’s The Jungle and the company’s clever “We Answer to a Higher Authority” ad campaign that started in 1965.  Some of the specifics of the complaint might prompt us to fill our plate with eggplant today, but boiled (or grilled or fried) down to its essentials, the complaint tells a story of a manufacturing process that does not fully comply with religious rules. That is sure to raise interesting issues of expert testimony and cognizable injury. Do different ethnic or religious groups enjoy different consumer protection rights?  The manufacturing process involves a number of players besides ConAgra.  Indeed, ConAgra does not seem to have had much to do with the worst (wurst?) alleged transgressions.  But ConAgra is the only defendant. ConAgra denies the allegations. The hot dog case has nothing to do with a drug or device, but we will still follow it, because the issues are interesting and relevant and because, frankly, we are among those consumers who happily pay a bit more for Hebrew National hot dogs. They simply taste better. How do we opt out?

Finally, on this most American of holidays, we cannot ignore the Eleventh Circuit’s decision in Farias v. Mr. Heater Inc., 2011 WL 2354369 (11th Cir. June 21, 2012). Like the hot dog case, it suggests something screwy about the American melting-pot.  (By the way, whatever a melting pot is, it is one of the few cooking implements not being used for our holiday barbecue.)  Our friends at the Abnormal Use blog mentioned the Farias case yesterday, and we won’t resist the opportunity to chip in our two cents. In Farias, the plaintiff purchased a Mr. Heater propane gas heater at a Home Depot for use in her home. (Last digression of the day. We once worked with an expert witness who was a professor of marketing. His main point was that advertising almost never creates primary demand. That is, cigarette ads might influence whether you would smoke Marlboros or Camels, but they could not turn non-smokers into smokers. Just like car ads do not make you want to drive. Plaintiff lawyers would always ridicule that point, but plaintiffs, in their depositions, almost always validated it. Anyway, this marketing professor considered it high comedy when companies names themselves “Mr. [fill in the blank].” He thought it was the most uncreative, unmemorable, stupid name for a business. He had a hobby of collecting signs, cards, and other detritus from businesses that adopted the name of “Mr. Something.” We contributed Mr. Mulch and Mr. Bar Stool souvenirs to his collection. The professor would have laughed at Mr. Heater.) The plaintiff failed to close the valve on the propane tank before going to bed. Fire. Damages. Lawsuit for strict liability and negligence. The plaintiff, who spoke only Spanish, contended that the manufacturer breached a duty to provide bilingual warnings of the product’s danger. Now, there is no general duty to supply bilingual warnings. The plaintiff relied on Stanley Indus. Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1576 (S.D. Fla. 1992), where the court held that “[g]iven the advertising of defendants’ product in the Hispanic media and the pervasive presence of foreign-tongued individuals in the Miami workforce, it is for the jury to decide whether a warning, to be adequate, must contain language other than English or a pictorial warning symbols.” In Stanley Indus., the district court found that the manufacturer and seller “regularly and actively” advertised on Hispanic television, four different Hispanic radio stations, and in a Spanish language newspaper. By contrast, the plaintiff did not unearth such evidence in the Farias case. Home Depot had recently instituted a policy for all its vendors to use bilingual packaging, but that did not evince a targeted campaign. So after the litany we recited above of fire, damages, and lawsuit, add summary judgment.

That result seems fine. But it occurs to us that it might have been a close thing. If targeting a subgroup of consumers sets up a duty to tailor warnings specifically for that group, then watch out, because most sellers of consumer products do plenty of targeting. Look at marketing research documents, brand plans, and media plans. There is more often than not a significant degree of group targeting. Some plaintiff lawyers sink to their most condescending, oleaginous depths in trying to turn “targeting” into a bad word. That is not only doltish but supremely ironic. Have you ever seen where plaintiff lawyers run their ads? Any marketing textbook lays out the necessity of targeting groups of consumers. There is a reason why investment banks advertise during “Meet the Press” and not, say, during “Say Yes to the Dress.” But here is the doctrinal issue that ends today’s discussion. If warnings must be specifically addressed to the targeted groups, what does that mean in terms of their required content? Bilingual is relatively easy. But what if you really are targeting viewers of “Say Yes to the Dress”? Does your warning need to be different than if you are targeting members of AARP? Or readers of Soldier of Fortune? And here we must leave off and turn to our macaroni salad, because now we are about to enter territory that, at least for those of us prone to making bad, tasteless jokes, is target-rich. Don Rickles and Adam Carolla would have a field day. Talk amongst yourselves. Come up with your own jokes. Remember how lucky we are to dwell in this miraculous, freedom-loving land, and enjoy the Fourth of July.