A century and a half ago, in America, if you were a parent and someone at the Ye Olde Parents Club informed you of a rumor that there was a “trout in the grocer’s milk” chances are that you’d find a grocer with a different milk provider. It would have been common knowledge to you and others at the Ye Olde Parents Club that farmers on their way to market watered down milk with stream water. Often times the tortious farmers got away with it because milk is cloudy and can hide clear water pretty well. And, if there was any doubt as to the purity of the milk, any farmer wishing to preserve his business and/or his reputation would deny, deny, deny, all the way into his grave if need be. “The cows,” the farmers would be likely to say, “are to blame if the milk seems a little thin.”
But, the masking power of milk (and the explanatory power of underproducing cows) has its limitations. Not even the thickest of whole milk can mask severely polluted water (think industrial solvent green or city-downstream brown), or various stream-bottom sediment. At times like these the farmer had no excuse good enough to explain what happened, and the only avenue left for him to explore was a flat denial. The farmer’s logic, no doubt, was that nobody could prove he did it since nobody, but he, was there when he did it. Making light of this stubborn illogic, Henry David Thoreau famously quipped, “Some circumstantial evidence is very strong, as when you find a trout in the milk.” In other words, if you find a trout in your milk, the farmer would be hard pressed to claim that it came from a cows utter.
Today this phrase has been lost in common discourse, though it is alive and well among lawyers and law students. So, it’s perhaps not surprising that during China’s ongoing Melamine-in-the-milk problems, commentators the world over have neglected to make the connection between how China’s melamine problems of today are America’s stream problems of yesterday.
I would like to see someone with more time than I try it. The thought beyond the comparison (or perhaps, inherent within it) is that America has no more trouts in it’s milk because of the proliferation of various common law mechanisms – in addition to criminal law remedies and agencies- for deterring producers from contaminating milk in this way. China, meanwhile, has what? And, what could China have?
Good luck, potential scholars out there.
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