Habeas Codfish: Reflections on Food and the Law.

Barry M. Levenson
University of Wisconsin Press
www.wisc.edu/wisconsinpress/
263pp., $24.95

Several years ago, while we were making up a guest list for a dinner party, my husband playfully suggested adding John LeCarre, one of his favorite authors. Sure, I said, as long as we invite Harper Lee, too. The Dalai Lama, he said, for a spirited spiritual discussion. Robin Williams, I added, for comic relief. We've been adding names to, and sometimes dropping names from, that list ever since.

I mention this because as I read Habeas Codfish I kept thinking I'd never want Barry Levenson at my dinner table. Not that he wouldn't be an entertaining guest. The guy clearly has a quick, if somewhat twisted and pun-heavy, wit. It's just that he knows too much--way too much--about certain topics that just wouldn't make for appetizing dinner conversation.

Take, for example, the story about poor Ms. Klein (Levenson never gives her first name), who on a hot July day in 1936 was touring the California countryside and stopped for a quick bite at the Happy Daze Buffet. She ordered a ham and cheese sandwich, took one bite, tasted something odd, and decided to peek between the bread slices. Much to her dismay--and immediate physical distress--she discovered that the sandwich was crawling with worms.

Or how about the case of gentle Carl Gentry? In 1982, he was eagerly tucking into a can of pork and beans during a lunch break at work when he stuck in his fork and pulled out a condom.

Klein's subsequent lawsuit against the sandwich shop and its supplier, and Gentry's case against the pork-and-beans maker, are just two of a gross of cases that Levenson relates with obvious relish in his first book--an amusing, if sometimes tasteless, overview of food-related law. (This pun thing is contagious.)

A former assistant attorney general of Wisconsin and collector of mustards (he claims to have the world's largest collection), Levenson's passion for food law dates to the early 1980s, when he was a lawyer doing research for the Wisconsin Public Service Commission. While in the law library one day, Levenson reached for a case reporter that fell open to a 1924 Oklahoma Supreme Court decision involving a man who refused to wear a jacket in a railway station's dining room.

He was hooked. "I collected cases, notes, references, news stories--anything to do with food and the law," Levenson writes in the book's preface. "One day, I thought, it would make for a fine book."

And it does--that is, if you have a strong stomach and your passion for the subject is as keen as the author's. The scope of the book--in terms of both the span of time and the number of topics covered--is impressive. Levenson takes us back through millennia in a brief review of the laws of kashruht, obeyed by Jews who "keep kosher." For those who already know that the practice forbids mixing meat and milk, this section is merely review. But Levenson goes deeper, examining how this ancient code and the $135 billion kosher-food industry have fared in modern courts. Does a state law designed to prevent fraud in the sale of food represented as kosher violate the First Amendment?

Other topics--products liability, trademark law, labeling, and libel--receive similar broad-brush treatment. In one chapter, we are transported to the 1901 Arkansas dining room of Lucien Nelson--who became "very sick nigh unto death" after eating a bad canned tongue--to learn why the "privity doctrine" prevented him from suing the manufacturer.

Another chapter is set in the 1990s: Pizza Hut and Papa John's are going at it hammer-and-tongs in federal court over each other's claims to have the freshest, best-tasting pizza ingredients. After years of litigation, the Fifth Circuit rules that companies' advertisements don't really matter because there is no evidence that the public believes them. Levenson, as consolation for this anticlimax to seven pages of buildup, includes his own recipe for "Pizza `2Die4'" at the end of the chapter. Talk about your fresh ingredients--ripe plum tomatoes, whole milk mozzarella, grated parmesan cheese ... who needs pizza in a box?

The tone changes abruptly on the next page when, at the start of a chapter called "Java Jurisprudence," Levenson recounts the story of 89-year-old Stella Liebeck, who suffered second-and third-degree burns when a cup of scalding-hot coffee she bought at a McDonald's drive-through window spilled on her lap. "Stella screamed in agony," Levenson writes with seemingly uncharacteristic compassion.

Which leads to my main gripe. The pages are filled with stories of people like Liebeck who suffer horrendous injuries, and Levenson treats them all with a humor that at times seems coldhearted. Take, for example, Liebeck's case, which Levenson jokes about as having raised "burning issues" in food tort liability. Or his treatment of the story about three-year-old Brianna Kriefall, who died after eating water-melon that had been contaminated by the deadly E. coli bacteria in the kitchen of a Sizzler restaurant.

The account of Kriefall's case immediately follows a story about how a Friendly's restaurant once refused to serve Levenson and his son rare hamburgers (undercooked meat can harbor dangerous bacteria like salmonella and E. coli). "I was disappointed," Levenson writes, "but my disappointment pales when you look at what happened to Brianna Kriefall." Understatement bordering on callousness, I would say.

Plaintiff lawyers will no doubt take issue with the author's repeated references to legitimate lawsuits as "frivolous" and even "silly." At one point, Levenson goes so far as to proclaim: "This is America, where lawsuits are sport and NFL stands for `national fever over litigation.'"

But he gets credit for helping to set the record straight about the Liebeck case, noting, for example, that the jury "was appalled" to learn that nearly 700 other people had suffered serious burn injuries from McDonald's coffee. And toward the end of the book, he acknowledges that "lawsuits--or rather the threat of lawsuits--can change the behavior of powerful companies. If we think that `runaway' jury awards are indeed a problem, the solution may be to create products and encourage corporate behavior that do not induce such verdicts."

Statements like that make me think that with a little more compassion, Levenson just might make a good plaintiff lawyer. But don't expect me to invite him to dinner.

Jean Hellwege is senior editor of TRIAL.