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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, February 29, 2008

Why Is a Burrito Sandwich So Hard to Swallow?

Florestal As Professor Marjorie Florestal (University of the Pacific McGeorge School of Law) notes in the abstract to her new article, Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts, a recent case involving the question of whether or not a burrito is a sandwich sparked a "firestorm of media attention."  She might have cited to this blog as evidence.  Some readers may be disappointed to learn that the article does not in fact answer the question in its title.  Well, one thing we know for sure, since it's not a goose, a duck or a turkey, a burrito must be a chicken.

In any case, for those hungry for Professor Florestal's insights on the case, here's the rest of the abstract:

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts - so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on common sense and a single definition of sandwich - two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them. The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the primitive formalism Judge Cardozo derided nearly ninety years ago when he said [t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a border view today. Does it? Despite the title of this piece, my goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, I explore what lies beneath the primitive formalism or somewhat smug determination of the court that common sense answers the question for us. I suggest Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. I explore this bias by examining the impact of race, class and culture on contract principles and on the determination of this case.

[Jeremy Telman]

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