Über die Autorin bzw. den Autor

Barry M. Levenson is the curator and CMO (Chief Mustard Officer) of the Mount Horeb Mustard Museum in Mount Horeb, Wisconsin, where he has amassed the world’s largest collection of mustards. Before his life as the world’s foremost mustard authority, he was an assistant attorney general for the State of Wisconsin. He argued dozens of cases before the Wisconsin Supreme Court and is undoubtedly the only lawyer to have appeared before the United States Supreme Court with a jar of mustard in his pocket.

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HABEAS CODFISH

The University of Wisconsin Press

Contents

Illustrations..................................................................................ixPreface........................................................................................xi1 Assault with a Breadly Weapon................................................................32 Big Beef Supreme.............................................................................173 Nutrition Facts, Nutrition Fictions: Thou Shalt Not Commit Adulteration!.....................324 Food Fight: A Tale of Two Pizzas.............................................................565 Java Jurisprudence...........................................................................686 Bones of Contention..........................................................................897 The Legacy of Mr. Peanut.....................................................................1058 McBully......................................................................................1239 Ladle and Slander............................................................................14210 From Bad Apples to Mad Cows.................................................................15811 It's Not Nice to Defraud Mother Nature!.....................................................16812 Not So Strictly Kosher......................................................................18413 Cruel and Unusual Condiments: Food in Prison................................................19914 Just Desserts...............................................................................21715 The Final Verdict...........................................................................232Notes..........................................................................................243Warning and Disclaimer.........................................................................257Legal Cases Cited..............................................................................259

Chapter One

Laws are like sausages. It's better not to see them being made. -Attributed to Otto von Bismarck

The task of exploring the connection between food and the law is a daunting one, a veritable feast of history and ideas. Let us first whet our appetites with an assortment of appetizers (legal hors d'oeuvres, if you will).

We present these tasty morsels to you as we would to a jury in a courtroom. They are a smorgasbord of exhibits from all over the world. Savor them as we set the table for Habeas Codfish.

Exhibit A-Paris, France. Who can possibly dispute the culinary significance of France? There must be plenty of examples of French cuisine and the law. Take the celebrated case of Monsieur Boulanger, who, according to legend, sold his soup with mutton feet in a white sauce from his pushcart in 1765. The guild of traiteurs (cook-caterers) complained that Boulanger was infringing on their territory by selling such a dish and hauled him into court.

Depending on the source, Boulanger either won or lost. According to Giles MacDonogh and Vernon Pizer, Monsieur Boulanger won and his victory was hailed as the beginning of the modern restaurant. According to Rebecca L. Spang, the legend is that Boulanger lost, but it is simply that-legend; there is no historical record of the case in the judicial archives of France. The Chinese appear to have had restaurants not unlike today's eateries as early as the thirteenth century, but we will not try to resolve that dispute.

Exhibit B-Vienna, Austria. The sweetest lawsuit of all was undoubtedly the dispute between the Sacher Hotel and Demel's, Vienna's renowned sugar baker. Which establishment could rightfully declare its creation the authentic "Sachertorte"? The Sachertorte, created in 1832 by Franz Sacher to honor Prince Metternich, is a dense chocolate torte with apricot jam and rich chocolate icing. Franz's son Eduard opened the famous Sacher Hotel in 1876, but the recipe was later sold to Demel's. The courts of Austria struggled with this case for many years (six times from 1938 to 1993). Perhaps this is not the most far-reaching legal issue of all time, but it serves to remind us that some tortes are better than other torts.

Exhibit C-Castile, Spain. King Alfonso of Castile despised garlic so much that he issued an edict forbidding any knight who had eaten garlic or onions within four weeks from coming to the royal court or from speaking to an official courtier. This was as heavy-handed a food law as was ever passed. Alfonso knew he had the power but he knew nothing of the glories of Spanish food; one cannot make a credible paella without garlic. Then again, Shakespeare echoed those exact sentiments through the character Bottom in A Midsummer Night's Dream, who advised the actors: "... eat no onions nor garlic, for we are to utter sweet breath" (act 4, scene 2). Believe it or not, the city of Gary, Indiana, once had a law that prohibited anyone who had eaten garlic within four hours from attending a movie house or riding a public streetcar.

Exhibit D-The Vatican. We stop here not because Catholics were once forbidden from eating meat on Fridays (repealed in 1966) but because in the year 732, Pope Gregory II ordered that Catholics should no longer eat horseflesh. Eating horse meat, reasoned the Pope, was what the Visigoths did and there was certainly no need to be like them. We also commend Pope John XXII (1316-1334) who created for his nephew the official position of Chief Mustard Maker to the Pope, although that act is infused with irony. "Chief mustard maker to the pope" is a term given to a vain and not-so-capable dullard. Perhaps we need to redefine the term and give it a kinder, gentler meaning.

Exhibit E-Prussia. It was 1744 and the peasants were starving. A simple solution was at hand-potatoes. Unfortunately, centuries of false tales and legends led the peasants to believe that potatoes were poisonous and evil. Frederick II, with the best interests of his subjects at heart, issued a decree that all in his kingdom would plant potatoes or suffer the extreme penalty of having their ears and noses cut off. How ironic that a vice president of the United States (you remember Dan Quayle, don't you?) was unable to spell "p-o-t-a-t-o-e-s."

Exhibit F-The U.S. Supreme Court, Washington, D.C. The final arbiter of law in this country, food and nonfood alike, is the Supreme Court. Perhaps our attention is drawn to this venue because two of its justices were named after the most popular American foods: Justices Felix Frankfurter and Warren Burger. More than a century ago, when faced with the ultimate legal question of whether a tomato is a fruit or a vegetable, the high court eschewed the science of botany and chose the common sense of the dinner table: in the eyes of the law, the tomato is a vegetable because we eat it as a vegetable! Justice Gray wrote:

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in...