Tuesday, May 13, 2008

The Law of Sandwiches

*****Shameless Plug Alert!*****

Have you ever bitten into an overstuffed, rice-and-beans-and-salsa laden burrito and thought “Gosh, that was a good sandwich!” What? A burrito is not a sandwich, you say? Don’t be so sure. Believe it or not, that question was the subject of much media attention after a Massachusetts superior court judge ruled that “common sense” will tell you burritos are not sandwiches. Sadly, I lack much common sense because I spent the last year delving into this rather vexing question. I’ve recently posted the results of my research here. No, it is not a how-to guide for making burritos but my latest academic article entitled Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts. In it, I explore the fine art of contract interpretation and maintain that the process by which court’s give meaning to words is not neutral (surprise!) Rather, societal notions of race, class and culture are folded into whatever meaning we choose to bestow. What the Massachusetts judge described as “common sense,” is nothing more than the view of a scene from the majority lens. It is perhaps understandable—even necessary—that it be so. Could you imagine if words didn’t hold some common meaning that a majority of us share? How could we possibly communicate with each other? How could you read and understand this post? But law must work to uncover its biases. When we chalk a contested question up to “common sense,” we do violence to the interpretive process by privileging one meaning over another while claiming the mantle of objectivity for ourselves.
When I placed the last period on the page and happily accepted a publication offer, I thought that was the end of my (academic) love affair with burritos and sandwiches. Alas, I was perusing the New York Times last week and came across a review of sandwiches. And the poor wrap (the burrito’s kissing-cousin) was summarily excluded! On behalf of forgotten and forlorn food items everywhere, I pinned a response, but Ye Olde Venerable NYT declined to publish my op-ed. And so, I offer it up to you, Dear Reader, as a shameless plug (I call it “shameless” because I’m not quite sure what burritos and sandwiches have to do with trade—the usual subject of my posts. But then again, I’m sure they somehow, somewhere enter the stream of international commerce . . . )

Burritos and Wraps are the New Sandwich
In a recent New York Times article, "The Next Best Things in Sliced Bread," Julia Moskin reviewed the sandwiches most likely to take the Big Apple by storm. While Ms. Moskin considered as sandwiches such exotic fare as the Chili Mackerel Mantou—a “crusty, spicy, resoundingly fishy” concoction heaped with pickled shallots on a fried fillet held together by a steamed, fluffy bun—her ground rules excluded wraps from consideration; by extension the burrito, their South of the Border relative, was also excluded. Are wraps not sandwiches? It reminds me of the now-infamous (at least in legal circles) decision of a Massachusetts superior court judge that a burrito is not a sandwich. Expert testimony in that case maintained sandwiches were of European ancestry, thus a burrito—with its origins in Mexican mining camps—could not qualify. Thankfully, Ms. Moskin eschews such a narrow interpretation; all of her sandwiches hail from outside the European continent, with two of the seven originating in China. But the summary exclusion of the wrap troubles me.
There is a certain mystique to the sandwich that is hard to explain, yet immigrant children have long recognized its iconic status. In the movie My Big Fat Greek Wedding, for example, a young Toula Portokalos is ridiculed by the sandwich-toting Beautiful People for eating moussaka (or moukaka, as one Mean Girl sneers). When Toula returns to school as an adult, she vows to shed her outsider status: This time she pulls out her own white bread sandwich, which she munches happily while chatting and laughing with the crowd. And so at last, Toula is accepted. She is one of them.
As a Haitian-American who grew up in New York City public schools, I empathize. I remember well the days of opening my Wonder Woman lunchbox hoping against hope this time my mother had packed a peanut butter and jelly sandwich, rather than the oh-so-inappropriate rice and beans she favored. It never happened. Like Toula, I had to wait until adulthood to experience the joy of eating a sandwich at lunch just like everybody else. Excluding the burrito/wrap from contention means generations of children will meet with the same fate.
You might think this is merely a question of personal preference; in fact, it has broader legal implications. I am a law professor who teaches contracts, and probably one of my most difficult challenges is navigating students through the fine art of legal interpretation—the process by which courts give meaning to words. I now use “the burrito case” as the prototypical example of what not to do. Just as Ms. Moskin refused to accept wraps into the family of sandwiches, the court summarily dismissed the idea that a burrito could also belong. Sandwiches require two or more slices of bread, said the judge, moreover, “common sense” will tell you burritos are not sandwiches. This approach to interpretation suggests words have a static meaning frozen in time and divorced from their surroundings, a notion Justice Benjamin Cardozo (right) famously derided when he said the law has outgrown this stage of “'primitive formalism.'”
I teach my students the search for legal meaning is always contextual, and the context in which words are used is ever-evolving. Consider how “bad” has come to mean “good” in common parlance, or how “hip” has expanded from an anatomical body part to also mean a state of being. Words have no intrinsic meaning. We as a society impart meaning based on a shared or common understanding. Ms. Moskin’s review suggests that, while our common understanding of sandwiches may have expanded to include such exotica as the Chili Mackerel Mantou, wraps and burritos are still excluded.
If it is true that food, like politics, is best served locally, then perhaps it really is just a question of perspective—East Coast vs. West Coast. I moved here fairly recently, but like thousands of Californians, I have stood in long, snaking lines at the local taquería waiting to hold my own little bit of heaven in my hands. After biting into that soft flour shell—letting loose a burst of rice and beans mixed with beef, and a spicy, onion-laden, lime-infused salsa—I quickly recognize this one noble truth:
At least in California, burritos and wraps are the new sandwich.


Patrick S. O'Donnell said...


You might be interested in my comments at PrawfsBlawg back in November of 2006 on this very subject (I managed to get Frege, Wittgenstein, and Llewellyn into the mix): http://prawfsblawg.blogs.com/prawfsblawg/2006/11/is_a_burrito_a_.html

But the length of your paper assures me you've both widened and deepened the discussion!

Rebecca Bratspies said...

great post!! i am going to read the law review article tonight.