Law Schools

Law School Responds To Stress Of The Season With Pie

Mmmmm... pie.

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One thing I know about 2020 is that you need some good humor to survive. And it looks like Dean Stephen Mazza at University of Kansas School of Law agrees with me.

He’s written a tongue-in-cheek article about a delicious holiday treat, Pecan Pie. He tackles the burning (pun intended) question of extra crispy crusts and filling ooze that plague bakers and pokes fun at legal academia. Seriously, if you’re a legal nerd with a sweet tooth, it’s a must read.

It’s been published in the “inaugural – and perhaps only – edition of the Kansas Journal of Confections & Winter Pastries.” Which, if it were real, I would absolutely subscribe to.

The article nails the baking issue — who hasn’t fought the precarious battle of getting the filling cooked all the way through and avoiding burnt crusts? And the article is filled with legal definitions and citations to get the Blue Booker in all of us psyched.

To get a sense of what we’re talking about, check out footnote 2:

No representation is made that the recipe described in this piece is superior to any other pecan pie recipe. The piece focuses instead on procedural issues surrounding the pie’s creation. Having said that, evidence exists supporting the conclusion that, at a minimum, the pie ranks very highly when compared with pecan pies advocated by others. A recent example is illustrative. The author prepared a pecan pie using the instructions provided in this Article and delivered it to Dr. Barbara A. Bichelmeyer, currently the Provost of the University of Kansas and formerly an employee at Tippin’s Pies. The Provost responded with a thank you card stating, “This is one of the best pies I’ve ever had.” Letter from Barbara Bichelmeyer to Stephen Mazza (Dec. 1, 2020) (on file with author). Shortly thereafter, the Provost’s colleague, Linda Luckey, sent the author an email stating, “[the Provost] said it was the best pie she ever ate – more than once so know she really, really liked it.” Email from Linda Luckey to Stephen Mazza(Nov. 19, 2020, 04:01 CST) (on file with author) (emphasis added).
The Provost qualifies as an expert witness as to pies. See FED. R. EVID. 702
(setting standard for expert testimony). Indeed, she readily passes muster under the familiar Daubert five-factor weighing test. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–94 (1993) (setting a 5-factor test for qualifying expert witnesses). The applicability of the individual factors listed depends on the nature of the issue, the witness’s particular expertise, and the subject of the proffered testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999). As the Daubert Court itself held, the ultimate reliability inquiry “is a flexible one.” Daubert, 509 U.S. at 594. As such, all five factors need not be present in every case in order to support admission of the witness as an expert.
See Kumho Tire, 526 U.S. at 151. Finally, as the Kumho Tire Court held, a trial court’s basic “gatekeeping responsibility” applies to the admissibility of expert testimony based on “technical” and “other specialized” knowledge—such as pie tastiness—not only scientific expertise. Id. at 147.
Here, the Provost’s expert report reveals her qualifications as a pie expert. See FED. R. CIV. P. 26(a)(2)(B)(iv) (an expert witness’s report must contain “the witness’s qualifications, including a list of all publications authored in the previous 10 years”). The Provost worked at Tippin’s Pies, a world leader in pies, for some time. See About Us, TIPPIN’S PIES, https://tippinspies.com/about-us (relating Tippin’s storied history as Kansas City’s leading pie company and noting
Tippin’s is “passionate about making world-class pies.”) (last visited Dec. 13, 2020). As the North Carolina Supreme Court held, “a witness with a Ph.D. in organic chemistry may be able to describe in detail how flour, eggs, and sugar react on a molecular level when heated to 350 degrees, but would likely be less qualified to testify about the proper way to bake a cake than a … baker with no formal education.” State v. McGrady, 787 S.E.2d 1, 13 (N.C. 2016) (applying North Carolina’s version of Rule 702). For these same reasons, the Provost’s practical experience qualifies her as an expert in pie. Linda Luckey’s statements bolsters this expert testimony. Ms. Luckey’s email, of course, is admissible under the double-hearsay rule. See FED. R. EVID. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”). Under Federal Rule of Evidence 805, if both the Provost’s statement and Ms. Luckey’s email fall under an exception to the hearsay rule, then the email is admissible despite being an out-of-court statement offered for the truth of the matter asserted.
Here, the Provost’s statement is obviously a “present sense impression,” which is an exception to the general rule barring hearsay. See FED. R. EVID. 803(1) (“A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”). Ms. Luckey’s email similarly falls neatly under the recorded recollection exception to the prohibition upon hearsay. See FED. R. EVID. 803(5) (“A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.”); see also EEOC v. Staffmark Inv. LLC, 67 F. Supp. 3d 885 (N.D. Ill. 2014) (admitting emails under Fed. R. Evid. 803(5)).
Attempts to establish definitive proof of the recipe’s dominance when
compared with other efforts in the field of pecan pies would likely require human subject matter testing. Such testing must comply with a host of regulatory requirements, including those established by the Public Health Service Act. Pub. L. No. 93-348, §§ 201–215, 88 Stat. 342 (1974); 45 C.F.R. §§ 46.101–.409 (2020). No attempt to obtain the necessary approvals has been taken.

If you got a kick out of that, you’ll enjoy the full article.

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headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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