Clearing out some podcasts from my phone recently (and be assured: as certainly as the sun will appear on the eastern horizon tomorrow, you will run out of space on your phone), I ran across a “classic” podcast by the folks at the NPR show “Planet Money.” “Planet Money” is, as the name suggests, concerned with financial and economic matters. And the one that caught my eye was entitled, “How the Burrito Became a Sandwich.”
This headline surprised me, because in the past I’d written about a 2006 decision by a Massachusetts judge, in which he ruled — for all time, one must presume — that a burrito is *not* a sandwich. Indeed, that decision, by Judge Jeffrey Locke, led to some nasty back-and-forth sniping between two federal judges that didn’t even involve an actual court decision.
The “Planet Money” story involved a New York law that defines a “sandwich” for purposes of tax law. “Planet Money” focused on something called “Tax Bulletin ST-835,” which tells New York merchants what foods are, and are not, taxable — and specifically, what bread-and-filling concoctions are sandwiches (taxable) and which are, um, “not sandwiches,” (presumptively not taxable).
The Bulletin has lots of practical examples, based on the definition that a “sandwich” is “made on bread or on bagels, on rolls, in pitas, in wraps or otherwise and regardless of the filling or the number of layers.” The examples in the Bulletin include a buttered bagel, a hot dog, and a burrito (all technically “sandwiches”). But curiously, a taco is not a sandwich. Because this was “Planet Money,” the correspondents then delved into the history of New York’s food law, explaining how most food was non-taxable during the Great Depression, but that as times improved, most of it (at least in New York) gradually became taxable.
But one point never raised in the “Planet Money” piece was that 2006 case (which I’d written about at the time) involving a dispute over a shopping center lease. Panera Bread had an outlet in a Shewsbury, Massachusetts shopping center guaranteeing that no other “sandwich shop” could operate in that center while Panera was there. Then Qdoba Mexican Grill wanted to open an outlet there, too, but ran into Panera’s exclusivity clause.
So Qdoba took the other parties to court, and Judge Locke, relying on such detailed judicial precedent as expert opinions on the meaning of “sandwich,” testimony about what the parties intended “sandwich” to mean, and even “common sense.” ruled that a burrito was not a sandwich (take that, New York!) and allowed Qdoba to open. Panera decided to cut its losses and did not appeal.
But despite the “Sandwich v. Burrito” decision setting no binding legal precedent, it was cited in a lengthy book co-written by Justice Antonin Scalia and the respected legal scholar Bryan Garner. Their book provided an extensive list of rules of statutory interpretation, and included detailed examples of how courts applied them in real cases. But what created controversy was that Scalia and Garner were pushing the notion of “original-meaning textualism.” That is, they claimed that the words of a statute, constitutional provision — or, oh, I don’t know — a shopping center lease — should be applied based on the ordinary meanings of the words involved. They praised Judge Locke’s decision for using a dictionary definition of “sandwich” to reach what they saw as a “common sense” decision.
But the equally well-respected federal Judge Richard Posner wrote a critical review of the book. His take on “original-meaning textualism” can be gleaned from his review’s title: “The Incoherence of Antonin Scalia.” And Posner seemed to have it right: besides a dictionary, Judge Locke cited a raft of non-textual sources, including those expert opinions (wait . . . there are sandwich experts out there?) down to the dreaded “common sense” to reach his decision.
Posner’s point was that “original-meaning textualism” is often just an intellectual fig leaf for judges to reach decisions that they were already inclined to reach beforehand. Citing to tests like “original-meaning textualism” allows those judges to cloak the decision that they wanted to reach anyway by citing something supposedly “objective” — such as dictionary definitions of the words.
And as the “Planet Money” story demonstrates, there really is no “objectivity” here. It comes down either to the arbitrary definition some writer came up when putting together a dictionary.
And perhaps confirming Posner’s criticism, the folks who write tax laws in New York would like a word, too.
Frank Zotter, Jr. is a Ukiah attorney.
Read More
