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November|December 2003
Count Me Out, Coach By Bruce Barcott
PCU By Sasha Polakow-Suransky
Cases & Controversies
The Prudent Jurist By Charles Geyh

Cases & Controversies


Ever wonder who pays Venus and Serena Williams to wear milk mustaches? Dairy producers do, by way of taxes called "checkoffs" collected by the Department of Agriculture. The USDA also markets other home-grown American products, including beef. Cattle ranchers pay $1 a cow for the less inspired "Beef. It's What's for Dinner" campaign. But two groups of ranchers who raise organic cattle have sued the government, arguing that the fees force them to fund speech they don't agree with. (The ads erroneously imply, in their view, that all cows are the same.)

Two years ago, the Supreme Court seemed to have settled this issue when it found that the government could not require mushroom farmers to fund generic advertising for their product. Since then, apple, hog, and even alligator farmers have successfully brought similar suits. And in July, the Eighth Circuit ruled that the Beef Promotion and Research Act of 1985, which established the checkoffs for beef, is unconstitutional.

A district court in Montana, which is in the Ninth Circuit, found differently. It made the novel argument that ad campaigns to eat beef constitute government, not commercial, speech (like the "Buckle Up" seatbelt campaign) and can therefore be compelled.

Run-On Sentence

It was a B-movie moment. After a jury found David Mayle guilty of cashing $5,000 worth of Joseph Newman's Social Security checks, the judge learned that prosecutors suspected, but could not prove, that Mayle had murdered the missing Newman. There was also circumstantial evidence that Mayle had killed two other people in order to rob them years earlier. A witness had told police that Mayle had confessed to one of the murders, but the witness later recanted his statement and no physical evidence linked Mayle to either case.

The maximum sentence for Mayle's conviction for the forged checks was 21 months. Convinced he was dealing with a very bad man, Judge James Gwin sentenced Mayle to 30 years in prison.

The Sixth Circuit Court of Appeals ruled this summer that Gwin acted within the law. At trial, a judge or jury must find guilt "beyond a reasonable doubt." But at sentencing, a judge need only meet the lower burden of "a preponderance of the evidence." Federal sentencing guidelines also allow judges to impose enhanced penalties if they find evidence of "relevant conduct" or unusually egregious "criminal history." Gwin decided that Mayle had killed Newman, which he considered highly relevant to the forgery conviction. The judge also included the earlier murders in Mayle's criminal history. Mayle is now doing time for three murders for which he was never indicted.

Cereal Litigation

Toucan Sam of Froot Loops fame is the Tom Cruise of the cereal world. On the ornithological mascot's behalf, Kellogg's has sued a Zimbabwean manufacturer that marketed "Fruit Hoops" (Sam won), a steel drum band named the Toucans on the grounds that Toucan is himself a recording artist (they settled), and a fruit juice supplier for using a toucan to promote its beverages (Sam lost).

Sam's latest trademark suit—against the golf club manufacturer Toucan Golf—has now been rejected by the Sixth Circuit. Kellogg's argued that Sam had entered the golf market because he appears in commercials with a golf-playing bear.

Judge Richard Suhrheinrich seemed well disposed to Sam, describing him as an "anthropomorphic cartoon toucan" with "a pleasant and cheery demeanor." But in the end, he found that Toucan Golf, which primarily manufactures putters, was unlikely to get into the "cereal game"—despite its GolfBird logo—and that the birds of the two companies were not of the same feather. "We find GolfBird dissimilar to Toucan Sam," he wrote. "GolfBird resembles a real toucan."

College Blues

Michael Frentzel, a 19-year-old college freshman at Ferrum College in Virginia, hanged himself in his dorm room after an argument with his girlfriend that had been broken up by campus officials. Now, three years after his death, the college has settled a $10 million lawsuit brought by his aunt, agreeing to pay an unspecified amount in damages and to modify its policies on counseling and crisis intervention. The college also took the unprecedented step of acknowledging responsibility for Frentzel's suicide.

Colleges were once considered custodians of their students under the legal doctrine in loco parentis ("in place of the parent"). But after the voting age was lowered to 18 in 1971, it seemed anachronistic for colleges to treat their students as wards, so chaperones and curfews faded away. By the late 1980s, however, most states had raised the drinking age to 21, complicating the question of whether or not students are full-fledged adults. The courts have not resolved the debate, but the Ferrum settlement might spur further litigation. MIT already faces a similar suit by the parents of a depressed sophomore who killed herself after repeatedly seeking college counseling.

The judge in the Frentzel case found that the doctrine of in loco parentis didn't apply because the young man was not a minor. But he affirmed that a "special relationship" existed between the school and Frentzel, in part because school officials knew of his suicidal tendencies. That ruling may have made Ferrum liable for Frentzel's death—and surely it prompted the school to settle.

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