ContractsProf Blog

Top Ten Posts of 2024!

I won’t be doing much posting until new Spring Semester begins, so it’s time to look back on a year of posts and recall some of the best contracts law stories of the year. This list is highly subjective of course. Some things are on this list because they are quirky incidents. Sometimes they are on the list because they are important contracts news stories or cases.

For those of you who like lists, here’s the top ten from 2023.

And here’s this year’s list:

10. Man tricks bot into selling him a Chevy Tahoe for $1

9. A real-life interpretation hypo for the ages: “No Cell Phone Use in the Locker Room"

8. Simple teaching case on asocial promises (from New Zealand!), with a  promissory estoppel chaser

7. Sid DeLong muses on contracts issues in Moby Dick 

6. Disney makes an outrageous arbitration argument (in response to a highly-attenuated theory of vicarious liability)

5. Liquid Death cites Leonard v. Pepsico in a new, jet-giveaway advertising gimmick

4. Brian Bix on the Passing of Charles Fried

3. Samsung wins (perhaps because of plaintiffs’ lawyers oversight) against a mass arbitration claim by refusing to arbitrate

2. Great short teaching case on negligent misrepresentation (by bot) from Canada

1. A true-life Sales hypo with infinite variations: D’oh! A Deer!

Supreme Court of Georgia Weighs in on Shortened Statutes of Limitations for Wrongful Death Claims

We posted on this BPG Inspection v. Omstead last year when the Georgia Court of Appeals issued its opinion. The facts are as follows: 

BPG agreed to a fee of $380 to conduct an inspection of the home that the Omsteads were considering purchasing.  The key contractual language at issue ran as follows:

YOU MAY NOT FILE A LEGAL ACTION, WHETHER SOUNDING IN TORT (EVEN IF DUE TO OUR NEGLIGENCE OR OTHER FAULT), CONTRACT, ARBITRATION OR OTHERWISE, AGAINST US OR OUR EMPLOYEES MORE THAN ONE YEAR AFTER THE INSPECTION, EVEN IF YOU DO NOT DISCOVER A DEFECT UNTIL AFTER THAT. THIS TIME LIMIT MAY BE SHORTER THAN THE LAW OTHERWISE PROVIDES.

A BPG employee undertook the inspection in February 2020 and provided a report that cautioned that the inspector's role was to identify material defects discovered upon visual examination.  "Latent, inaccessible, or concealed defects are excluded from this inspection."  The report mentioned a seven-foot tall retaining wall but observed that it seemed to be functioning as intended.  The inspector returned one month later in connection with some repairs that the Omstead's had requested of the sellers.  

The Omsteads later discovered that defects in the retaining wall was causing water to leak into their garage.  While they were attempting to address those defects in July 2021, the wall collapsed onto Mr. Omstead, and he died from his injuries. In September 2021, Mrs. Omstead filed suit against BPG and its inspector, alleging negligence, fraud, breach of contract, and breach of warranty.  The trial court denied summary judgment to defendants, finding its exculpatory clauses void as against public policy.  

The Court of Appeals reversed. The majority found no basis, in the common law of the state or in statutes for refusing to enforce the contractual shortening of the statute of limitations. Judge Barnes specially concurred, calling on the legislature to follow the models of other southern states and prohibiting the shortening of statutes of limitations with respect to cases of personal injury or wrongful death. I applauded the call for inter-branch dialogue, and I am generally no fan of exculpatory clauses. However, in this case, I think a party ought not to be forced to open itself up to limitless liability in exchange for a $380 inspection fee.

In Omstead v. BPG Inspection, LLC, the Supreme Court of Georgia upheld the Court of Appeals’ decision. It first noted that the above-quoted contractual language applied to all claims, whether sounding in contracts or tort. Moreover, while there is law that provides that exculpatory clauses cannot by upheld in cases of gross negligence or fraud, the language in question is not an exculpatory clause; it is a shortening of the statute of limitations that does not purport to exclude claims against BPG if brought within one year.

Mrs. Omstead next offered the interesting argument that her cause of action accrued at the time of the wrongful death. Courts should not permit "contractual repose” provisions that allow the statute of limitations on actions to expire before they even accrue. It’s an interesting argument, but the Court found no support for it in Georgia law. The Court would not permit its silence to interfere with the principle of freedom of contract that requires courts to enforce the intent of the parties as manifested in their agreements. Nor was there any statutorily imposed duty of care that BPG was impermissibly trying to escape.  In short, the Court found no legal grounds on which to refuse to enforce the contract as written.

The Court then turned to considerations of public policy. The reasoning here was not much different. Mrs. Omstead relied on a statute that prohibits parties from seeking indemnification from harms resulting from certain kinds of contractual arrangements. The Court assumed without deciding that this contract fell within the ambit of the statute. Nonetheless, a shortened statute of limitations is not an indemnification clause.

Presiding Justice Peterson (right) concurred dubitante. His doubts arose from a question of unconscionability, an issue that Mrs. Omstead never appears to have raised. The majority does not say that the issue is thereby waived, but it declines to address it. Justice Peterson has a nagging sense that the court ought to explore the issue further, as BPG’s counsel acknowledged that there is some point at which a shortening of the statute of limitations becomes unconscionable. Justice Peterson joins in Judge Barnes’s call for the legislature to address the matter.

Friday Frivolity: The Unalloyed Joy of Having One's Priors Confirmed!!!

Last year, I was vexed to have been characterized as a "proponent of tested contract language" by one of the leading advocates for the "plain language" movement in contracts drafting. I objected to my characterization because, while I have nothing against clear drafting, I don't think complexity in language is the biggest problem that we face in contracts drafting, and I don't think plain language does anything to alleviate the major problems. I reviewed the terms and conditions of the blog on which I was pilloried, and I noted that they amounted to ten clearly-worded pages, including links to the privacy policies of there "trusted partners." The terms also provided that they could be changed with or without notice. I commented that if a reader got through all ten pages of the policy, they would likely conclude that "ease of understanding the contract's language is not its biggest problem."

Shawn Bayern (right) recently posted on JOTWELL his review of recent draft article by Yonathan Arbel (left), ​ The Readability of Contracts: Big Data Analysis, 21 J. Empirical Legal Stud. __ (forthcoming, 2024), available on  SSRN. You should read Shawn's review and Yonathan's work. But I am struck by his conclusion (at least in the draft), which Shawn cites in his review: 

[T]he resources devoted to simplifying contract language could have been directed towards addressing more fundamental issues in consumer markets, such as improving market competition to give consumers more meaningful choices; addressing information asymmetries through targeted disclosure requirements; strengthening enforcement mechanisms against unfair or deceptive practices; or removing regulatory barriers to entry to markets. 

I am grateful to Yonathan for his work, elevating my priors, which were based on anecdote and hence might be dismissed as unwarranted, to the level of empirically-justified social scientific conclusions.

Update on Johnson v. Settino, Celebrated Engagement Ring Dispute

Last year, we posted about the intermediate appellate court's ruling in Johnson v. Settino, a case about a woman's refusal to return an engagement ring. In that post, we complained that Massachusetts courts had adopted what we delicately termed "the most idiotic approach" to resolving disputes over which party gets to keep the ring after a broken engagement. Under then-existing Massachusetts law, the appellate court had to determine who was at fault for the engagement's demise, and it would award the ring to the other party. In this case, that other party was Mr. Johnson, the appellate court found. Even though it was Mr. Johnson who initiated the breakup, Ms. Settino gave him ample reason to do so, and so she was not entitled to keep the ring.

Earlier this month, no doubt shamed by the Blog's emphatic criticisms of its approach, in Johnson v. Settino, Massachusett's Supreme Judicial Court abandoned its rule requiring the court to determine which party was at fault for a break up. We poured the tea in the original post on this case, so I won't recount all the facts here.

For our purposes, it suffices to say that there are really two issues here: first, is Ms. Settino required to return the engagement ring and wedding bands that Mr. Johnson bought for $73,700? Second, while Mr. Johnson did not challenge the ruling that he was obligated to pay for Ms. Settino's dental implants as promised, he did challenge the calculation of pre-judgment interest.

As to the first issue, over sixty years ago, Massachusetts wed itself to the rule that engagement rings and the like are conditional gifts that must be returned if the condition is not met, unless the gift-giver is at fault for the termination of the engagement. In the interim, the modern trend has tended to remove the extra condition from the conditional gift analysis. Reviewing  decisions from other jurisdictions illustrating the trend, the Court provides four reasons why  courts should not be in the business of determining which party is "at fault" for a break-up. What part of "the most idiotic approach imaginable" does this court not understand? In any case, four reasons seem to be sufficient to persuade the Court that it erred sixty years ago.

The Court then considers whether the principle of stare decisis should prevent it from joining the modern position. Based on some recent decisions from a very different court, I thought it sufficed if a majority of the court determined that the original decisions was "egregiously wrong" when decided. This Court's approach was far more cautious, but it ultimately concluded that stare decisis should be no barrier to change in this instance.

As a result, the ring was to be considered a gift, conditioned on marriage. The condition not being met, it was incumbent upon Ms. Settino to return the ring. The substance of the appellate court's decision was affirmed; its reasoning was abandoned.

There remained the matter of Ms. Settino's counterclaim, construed as one for promissory estoppel although originally pled as breach of contract. The lower courts found that Mr. Johnson was obligated to pay for her dental implant surgery, which he promised to cover during their engagement. Mr. Johnson did not challenge that ruling, but he did challenge the award of pre-judgment interest. She is entitled to pre-judgment interest from the time that she filed her counterclaim, not from the time of the original complaint. The case was remanded for a calculation of pre-judgment interest on that basis.

I learned of this decision by the happiest of all means. I ran into Joe Tomain, of Indiana University's Maurer School of Law, at a constitutional law conference (of all places). When not engaged in the lofty pursuit of public law, Joe teaches contracts, and he follows the Blog. His student Marie Burns shared the case with him. So I tip my hat to Joe and to Marie!

Stephen Henderson Is Now Leading the CrimProf Blog

I'm always heartened when I learn that a law professor has turned to blogging. In this case, there is also an Oklahoma connection. Stephen Henderson of the University of Oklahoma has taken over leadership of the CrimProf Blog, and he has brought some new bloggers on board.  I may have some links once they start posting. It looks like Professor Henderson will, in the great LawProfs Blog Network tradition, also post from time to time on law school and law school culture more generally, so this may be a blog to watch, even if you are not that into crim law.

You can follow CrimProf Blog on Bluesky here. 

This Bird Has Flown: Leaving Twitter

This move is long overdue. I will permanently close the Blog's Twitter account at the end of the week.  I really enjoyed my time curating the Blog's profile on Twitter. I learned a ton from that site and made/solidified some relationships. However, these days, the Blog gets very little engagement through Twitter. It's a crowded marketplace, and the tone of the Blog is not ideally suited for that space.

If you would like to continue following the Blog on social media, we will maintain our Mastodon and Bluesky accounts. I recommend both sites. They operate a lot like Twitter, but somehow the vibe is very different. 

Bluesky is more like Twitter. It was founded by two Twitter executives. I don't really know or care what caused two of the people behind Twitter to create a rival site that is a lot like Twitter. All I an say is that Bluesky is growing very rapidly now, as there has been a recent exodus from Twitter. The number of users was 200,000 in July 2023, 5.9 million in July,2024, and I recently saw that it surpassed 14 million this month.  You used to need an invitation to join Bluesky. That is no longer true. One of the problems I experienced with Twitter , especially this year,was that most of the Blog's followers seemed to be bot accounts. That seems to be very rare on Bluesky. Lately, Bluesky has been featuring a lot of "starter packs" which helps new users find people with common interests and also helps existing accounts get a lot of new followers who share common interests. The Blog's followers have nearly doubled just in the past week, and engagement is way up (although the numbers are still very small).

Mastodon seems to attract more tech people and visual artists. Photos are much clearer and crisper on Mastodon. It's a very pretty site. There's a lot of happiness and support on the site -- at least on the part of it that I inhabit. The downside (for me) is that it attracts a lot of techies who, for reasons that escape me, have no interests in contracts law. Also, their posts are completely incomprehensible to me. 

I recommend both of these sites, and I hope that those of you who follow the Blog on Twitter will continue to do so on one or both of these sites.

Friday Frivolity: Human v. AI Limerick Challenge

I attended a session last week about using AI in teaching and life. The first example that the person running the webinar used to illustrate generative AI's capabilities was, for some reason, to ask it to compose a Limerick. It was about a cat. Rather tame stuff, I thought, but I had to admit, it was metrically competent.

The next request was for a Limerick about a girl eating an ice cream cone. Some people think that Limericks have to be bawdy. It's not true. The original Limericks were neither bawdy nor very funny. They were just odd. However, if Limericks were supposed to bawdy, the generative AI took no notice of that parameter. And now the composition was metrically bumpy.

Nonetheless, I was anxious. The demonstration involved Microsoft Pilot. What if a more advanced version of the technology surpassed my entire oeuvre of legal Limericks before you could say "estoppel"?

Well, here are some samples.  You be the judge. Is it real or is it generative AI?

Raffles v. Wichelhaus

Two merchants agreed on a ship,
But which Peerless would make the trip?
One was October,
The other sailed over—
So the court let the contract slip.

or 

In Peerless, a contract for cotton
Was found by the court to be rotten.
Two ships that so hailed
To Liverpool sailed,
No consensus ad idem was gotten.

Leonard v. PepsiCo.

Intent to be bound was a barrier
To Leonard getting a harrier.
Now he only drinks Coke,
And he gets every joke,
But I would not say he's much merrier.

Leonard saw jets on TV,
Said, “I’ll cash in my points—get that free!”
But Pepsi replied,
“No jet can be tried—
Our ad wasn’t serious, you see.”

Frigaliment Importing Co. v. B.N.S. International Sales Corp.

Of Judge Friendly's great chicken coup,
Shakespeare's witches would make much ado,
With defendant they'd howl,
"Foul is fair, fair is fowl!"
That is, chickens fit only for stew.

A fight broke out over "chicken,"
With meanings that just wouldn't thicken.
One thought it was young,
But the court found among
The terms, any bird could be stricken.

In due course, I will put the answers in the comments.

Friday Frivolity: Liquid Death News

We reported earlier this year on a promise by a beverage company, Liquid Death, to give away a jet in an advertising campaign piggy-backing off Leonard v. Pepsico. We then reported that there had been no announcement of the winner on September 20th, the date the company had designated as the date for the announcement. Today, we have two new bits of Liquid Death news.

First, Liquid Death has now announced the winner of the jet contest. Thanks to commenter Sasha for letting us know. The details are pretty thin. The winner is "Zac from North Carolina." It seems that he has opted to take the jet, the six months of free hangar space, and the year's supply of Liquid Death. It's a bit disappointing. Having one-upped PepsiCo., I was expecting a splashy event, with the winner, the jet, and -- I don't know -- colorful, loud displays that would appeal to Liquid Death's demographic. "Zac" seems to have a smaller appetite for publicity than he does for liquid refreshment. The company also boasts that it received over 30,000 entries. That actually seems like a pretty low response to me. The plane was worth something like $250,000. I would think the company was hoping to generate more than 30,000 sales through the contest, but perhaps I am thinking about this wrong. Maybe the point was the free advertising that the campaign generated.

Liquid Death has announced a new potential giveaway. This time you have to jump through some hoops. First you have to drink iced tea. Second you have to "chug" it. Third, you have to do so in less than eighteen seconds. Why eighteen? I am not enticed, but it does make it a better example of an offer to enter into a unilateral contract.

I would be worried that I have become a conduit for free advertising for this company, but I'm pretty confident that the overlap between readership of this blog and the intended targets of Liquid Death's promotions is the null set. But it is cute that the company featured some people my age or older chugging iced tea. My students are rooting for "the granny."

Forthcoming Scholarship Responding to Kim Krawiec & Nate Oman

I posted a blog version of this response back in September. It has now gone through substantive edits and will be forthcoming in the Iowa Law Review Online soon. It hasn't even gone officially live on SSRN yet because . . . reasons. Lately, my submissions to SSRN don't go live until I ask them what the holdup is, and then it goes live almost immediately. The ways of the gods of SSRN are hidden to us. In any case, you can be the WORLD PREMIERE reader!

Anyway, the link is here, and here's the abstract:

This brief response to The Case for Specific Performance of Personal Service Contracts by Kim Krawiec and Nate Oman builds on their suggestions for a limited expansion of the availability of the specific performance remedy in contracts for personal services. The response quickly reviews Professor Krawiec and Oman's arguments and registers some skepticism as to the likelihood that parties would agree to specific performance as a remedy in the situations they discuss. They make the excellent point that a positive injunction can be a tool to bring about settlement. In addition, specific performance should also be available where the court can be confident that: (1) the party subject to such an order will perform to the best of their ability; and (2) the party that has to pay for such performance will not, if forced to pay, interfere with optimal performance.

I hope that my response will lead more people to have a look at Profssor Krawiec and Oman's work also available on SSRN, The Case for Specific Performance of Personal Service Contracts, 

Friday Frivolity: Did Liquid Death Give Away a Jet on the DL?

We posted last month about Liquid Death's promotion that offered a real, actual jet to the lucky winner. In case you missed it, here is the ad.

I forgot to check the news on September 2oth, the date on which Liquid Death was to proclaim the winner, to see who had won and whether they had chosen the jet or its cash equivalent.  I checked this week. . . 

Mostly this is just a frivolity post, but it is also a symptom of the death of journalism. Media outlet after media outlet promoted Liquid Death's jet giveaway, providing the company with an avalanche of free publicity. And yet none of the "journalists" who thought the story newsworthy thought to follow up. It falls to this blog, which is hardly Reuters or the Associated Press, to do so. Don't call yourselves news media. Call yourselves Mad Men.

If anybody has any information about what become of the contest, please share. If there is nothing to share, does the promotion violate some consumer protection statutes?

The ContractsProf Vlog, Contracts Stuff, On Blogging About Scholarship

The long-awaited second installment of the Blog's new feature, Contracts Stuff. Don't worry, more episodes are in the works. Here, Dan Barnhizer and I chat about the various ways in which the Blog and legal scholarship interact.

The first episode, which is about the role of generative AI in teaching, is here.

Just in Time for Rosh HaShanah 2024, an Update on Passover 2019

Thanks to the "good citizen" who prodded me to dig up the outcome of Greenwald Caterers LLC v. Lancaster Host LLC, which we previously covered here. I had boldly predicted that the parties would settle the case. But I failed to notice that the case had by then already proceeded to trial.

The case was about a community Passover gathering that went very badly. The hotel that was to host the event was under renovation and was in poor condition when the Passover celebrants arrived. The hotel scrambled to remediate, and apparently it did so quite successfully, as the judgment was more or less a wash.

An April judgment clarified in June resulted in $1,447.60 awarded to the plaintiffs for prevailing on Count I of their amended complaint, and $5,164.28 to defendant (the Hotel) against Greenwald for prevailing on its counterclaim. I could not find a link to the judgment from the bench trial. A Westlaw search turned up only a post-judgment memorandum on attorneys fees.

The District Court found that neither party had prevailed and so it denied the hotel's request for over $240,000 in attorneys' fees. I am surprised that the fees are so low after years of litigation that resulted in a trial.

But now is the season for atoning and forgiving. May all involved be inscribed and sealed in the book of life.

New York Court of Appeals Weighs in on COVID Business Interruption Claims

We were covering this sort of claim a lot back in 2021, for example here and here.  Things didn't go well for businesses. Many of the cases were being decided in federal courts, even though insurance issues are a matter of state law. The federal courts engaged in Erie guessing, and they consistently guessed that state courts would find that COVID caused no "direct physical loss or damage" covered under business interruption insurance policies.

Back in February, New York's Court of Appeals confirmed in Consolidated Restaurant Operations, Inc. v. Westport Insurance Corporation that, at least with respect to New York law, the federal courts guessed right. With admirable New York-style directness, the Court foregrounds its conclusion:

We hold that direct physical loss or damage requires a material alteration or a complete and persistent dispossession of insured property, which petitioner has not alleged. We therefore affirm the order below dismissing the complaint.

It's a tale as old as 2020. Consolidated Restaurant Operations (CRO) owned and operated dozens of restaurants. Due to the presence of the virus in its restaurants and government-ordered closures of non-essential businesses, CRO had to curtail or shut down its businesses. It sought insurance coverage for its business losses, and its insurer (Westport) denied coverage. The trial court granted Westport's motion to dismiss, and the Appellate Division affirmed.

On appeal, CRO tried two arguments. First, it argued that the court should interpret "physical loss" "to encompass situations where a physical event occurs on insured property and impairs its functionality or renders it, in whole or in part, unusable for its intended purpose." Second, if required to allege a physical alteration to its property, CRO claimed that it had so alleged. The Court of Appeals said, "No and no."

There are plenty of similar cases in which courts have held that "physical loss" requires a physical alteration of the property. CRO came up with a few cases from other jurisdictions in which courts treated contamination, e.g., through gasoline fumes, as physical loss, but only in situations where the harm was permanent and complete, making it impossible for the premises to serve their function. New York thus joined a large number of jurisdictions that have ruled in favor of insurers on such claims. The Court of Appeals dispensed with CRO's argument that it had pled physical loss in a few paragraphs.  While CRO had alleged the presence of the virus in its restaurants, it had not alleged any physical loss caused by the presence of the virus.

Putting Our Computing Might to Good Work: Does AI Think a Burrito Is a Sandwich?

Tracy L. M. Norton, Associate Professor of Professional Practice at Louisiana State University's Paul M. Herbert Law Center, has run a very useful and up-to-the-moment comparison of the leading generative AI products. Given our continuing coverage of the burrito controversy, and our recent Contracts Stuff Vlog on using generative AI in teaching, this seems like content we ought to share.

Here are her findings, which are not intended as an endorsement of any product:

Comparing Different Generative AI Models

The world of generative AI gets more crowded with each passing season as existing models upgrade and new models enter the chat. This document is a quick comparison of how some popular models respond to the same prompt. It's not a deep technical analysis, just a fun way to see how they stack up against each other as of September 15, 2024.

For this experiment, we're looking at:

1. ChatGPT-4 (one of the most effective models even 6 months ago)
2. ChatGPT-4o (one of the most effective models until a few days ago)
3. Chat GPT-o1 and ChatGPT-o1 mini (OpenAI's newest models)
4. Claude 3.5 Sonnet (generally agreed to have better reasoning than ChatGPT-4o
5. Perplexity AI (integrates web searching)

To keep things simple and fair, we're using a single prompt for all models, and all responses were cut-and-paste with minimal additional formatting. 'Is a burrito a sandwich?

Read through to the end to see what adding integrated web searching does for the answers Perplexity gives.

ChatGPT-4

Image by DALL-E

A burrito isn't typically considered a sandwich. While both are portable meals that include fillings encased in a bread product, there are key differences:

1. Bread Type: Sandwiches use two slices of bread or a split roll, whereas a burrito uses a single, soft flour tortilla that's wrapped and enclosed.
2. Cultural Origins: Sandwiches have a broad and varied origin story, often linked back to Europe, while burritos are a traditional part of Mexican cuisine.
3. Preparation and Presentation: Sandwiches are generally open on the sides and can be customized with a variety of toppings visible from the outside. In contrast, burritos are fully enclosed with the ingredients not visible.

These distinctions generally keep burritos out of the sandwich category in culinary and cultural discussions.

Image by DALL-E

ChatGPT-4o

No, a burrito is not a sandwich. A burrito involves a tortilla wrapped around its fillings, while a sandwich typically consists of ingredients placed between two slices of bread or inside a split roll. Cultural, structural, and culinary distinctions keep them as separate categories of food.

ChatGPT-o1

The classification of a burrito as a sandwich is a subject of debate that touches on culinary definitions, legal interpretations, and cultural perceptions.

Definitions:

• Sandwich: Traditionally, a sandwich consists of ingredients like meat, cheese, or vegetables placed between two slices of bread or within a split roll or bun.
• Burrito: A burrito is a dish from Mexican cuisine that involves wrapping a flour tortilla around fillings such as beans, rice, meat, and cheese, fully enclosing the contents.

Arguments That a Burrito Is Not a Sandwich:

1. Structural Differences:
• Enclosure: Burritos are fully enclosed by the tortilla, whereas sandwiches are typically open on the sides.
• Bread vs. Tortilla: Sandwiches use leavened bread, while burritos use unleavened flatbread (tortilla).
2. Cultural and Culinary Distinctions:
• Burritos are part of Mexican cuisine and have distinct preparation methods and flavor profiles compared to sandwiches.
• The eating experience and customary accompaniments differ significantly.
3. Legal Precedents:
• In a 2006 Massachusetts court case, White City Shopping Center, LP v. PR Restaurants, LLC, a judge ruled that burritos are not sandwiches in a dispute over a non-compete clause in a lease agreement.

Arguments That a Burrito Could Be Considered a Sandwich:

1. Broad Definitions:
• Some definitions of a sandwich include any food where ingredients are "sandwiched" between or wrapped in bread or a bread-like substance.
• For tax or regulatory purposes, some jurisdictions categorize burritos along with sandwiches.
2. Functional Similarities:
• Both are handheld foods that can contain similar types of fillings like meats and vegetables.

Conclusion:

While a burrito shares some similarities with a sandwich—such as containing fillings and being handheld—the differences in ingredients, preparation, and cultural origins generally place it in a separate category. Most culinary experts and legal interpretations maintain that a burrito is not a sandwich. So, in common usage and culinary contexts, a burrito is considered its own distinct type of food.

Image by DALL-E

ChatGPT-01 mini

The question of whether a burrito qualifies as a sandwich is an interesting one that touches on definitions, cultural perspectives, and culinary classifications. Here's a comprehensive look at the topic:

Definitions

• Sandwich: Traditionally, a sandwich consists of one or more fillings (such as meat, cheese, vegetables) placed between two slices of bread, a split roll, or within a bun.
• Burrito: A burrito is a Mexican dish that involves a flour tortilla wrapped or folded around a variety of fillings, which can include beans, rice, meat, cheese, and vegetables. The tortilla is typically fully enclosed around the fillings.

Arguments Against a Burrito Being a Sandwich

1. Structural Differences:
• Enclosure: Burritos are usually fully wrapped and sealed, whereas sandwiches are generally open on the sides.
• Type of Bread: Burritos use flour tortillas, which are unleavened flatbreads, while sandwiches typically use leavened bread.
2. Cultural and Culinary Distinctions:
• Cuisine Origin: Burritos are a staple of Mexican cuisine with specific preparation methods and flavor profiles that distinguish them from sandwiches.
• Eating Experience: The way burritos are consumed and the typical accompaniments (like salsa, guacamole, or sour cream) differ from those of sandwiches.
3. Legal Precedents:
• In certain legal contexts, such as the 2006 Massachusetts court case White City Shopping Center, LP v. PR Restaurants, LLC, burritos were not classified as sandwiches, highlighting distinctions in business and regulatory settings.

Arguments That a Burrito Could Be Considered a Sandwich

1. Broad Definitions:
• Some definitions of a sandwich include any food where fillings are enclosed within some form of bread or bread-like substance, which could technically encompass burritos.
2. Functional Similarities:
• Both sandwiches and burritos are handheld, portable meals that contain various fillings, making them functionally similar as convenient food options.

Conclusion

While there are superficial similarities between burritos and sandwiches—such as containing fillings and being handheld—the differences in their structural composition, cultural origins, and culinary contexts generally place them in separate categories. Most culinary experts, cultural perspectives, and legal interpretations treat burritos as distinct from sandwiches. Therefore, in common usage and culinary contexts, a burrito is not considered a sandwich.

However, it's worth noting that definitions can vary, and in casual conversations or certain regulatory frameworks, the classification might differ. Ultimately, whether a burrito is labeled a sandwich can depend on the criteria and context being considered.

Claude 3.5 Sonnet

Image by DALL-E

This is a contentious question without a clear consensus. There are arguments on both sides:

Arguments for a burrito being a sandwich:

• It consists of fillings between or wrapped in bread/grain-based exterior
• Shares similarities with other wrapped sandwiches like gyros or wraps

Arguments against:

• Burritos use a single tortilla rather than separate pieces of bread
• Culturally and culinarily distinct from what's typically considered a sandwich

Ultimately, it depends on how strictly one defines "sandwich." Many food experts and culinary associations don't classify burritos as sandwiches, but there's room for debate. What's your view on this?

Thanks, Professor Norton!

New Feature! The ContractsProf Blog's ContractsProf Vlog: Contracts Stuff

Here is the first installment of what we hope will become a regular feature of the blog. Michigan State University College of Law Professor Daniel Barnhizer.

In our first session, we discuss generative AI and its potential uses in law teaching.  Our production values can only go up!

 

Hiatus

I am taking a break from posting starting this week.  I'm not sure when I will resume, but no later than the start of classes in August.

The Endless Debate over Sandwiches May Now End, at Least in Indiana

We have covered this topic before. The topic is almost as old as this Blog, with our first post on the subject dating from 2006. We covered the sandwich debate here in 2008, when a Massachusetts court ruled that a burrito is not a sandwich. We did it again when Taco Bell turned the issue into a commercial. I wish I didn't have to cover it again, but at least this time we have something of a resolution. Moreover, Blogger Emerita, Meredith Miller (left) shared the story with me, and when Meredith feeds me stories, I rush to post in the hope that she will feel bad that I have to do so and maybe she'll come back and post her own stuff.

As Praveena Somasundaram reports in The Washington Post (yes, this is national news), Allen County Superior Court Judge Craig J. Bobay has ruled that burritos and tacos are, in fact, sandwiches. The are "Mexican-style sandwiches," to be precise.  Ms. Somasundaram took a deep dive in reporting the case, noting: the 2006 Massachusetts decision; Justice Ginsburg's view, voiced to Stephen Colbert on The Late Show in 2018, that hot dogs served on buns are sandwiches; and the "cube rule," according which a taco (and a hot dog for that matter) is a taco, and a burrito (as well as a corn dog) is a calzone.  It all turns on the location of the starch.

Judge Bobay broke out of the box, or the cube, ruling that tacos are not tacos, but sandwiches.  Burritos are not calzones.  They too are sandwiches.  But resolving whether tacos and burritos are sandwiches did not necessarily resolve the case.  It involved a zoning restriction, which prohibited fast-food restaurants, but carved out an exception for made-to-order sandwich shops, so long as they do not serve alcohol, have outdoor speakers or drive-throughs, or provide outdoor seating. Presumably, the Famous Taco franchise that Judge Bobay allowed made its tacos and burritos to order.  

You may be wondering what any of this has to do with contracts.  If I were on the job market, I think I would say, "the relationship is orthogonal."  Ilya Somin provides a more straightforward and interesting take on the case on The Volokh Conspiracy, focusing on issues of interpretation and zoning restrictions.  Like a talk-show guest, he deftly pivots at the end to hawk his latest scholarship, co-authored with Joshua Braver on The Constitutional Case Aaainst Exclusionary Zoning.

Would Burger King fit the exception, or it is no longer the case that you can "have it your way" at Burger King?

Hiatus from Blogging

A combination of the crush of the middle of the semester and family obligations involving international travel move me to take a month away from the blog.  I may pop in from time to time if posts fall into my lap, but I ask you to adjust your expectations of the blog to the lowest possible setting.

Friday Frivolity: Offer to Enter into a Unilateral Contract from John Oliver

Image by Neil Grabowsky / Montclair Film Festival, CC BY 2.0 via Wikimedia Commons

Offers to enter into unilateral contracts provide frequent blog fodder.  Elon Musk offered Wikipedia $1 billion if it would change its name.  He did something similar, offering to pay legal fees for people who faced adverse employment decisions for posts on Twitter.  James Corden gave us food for thought here.  Celebrities offer very high rewards for the return of their lost or stolen pets. Burma Shave offered a trip to Mars.  In all of these cases, the offeror seems to have made the offer for non-contractual reasons.  They never intended to make good on their offer.  They were just trying to make some point unrelated to mutually beneficial transactions. 

John Oliver (left) seems to be doing something very different. On his show last week, John Oliver produced a document that he described as "a contract," in which he, in his personal capacity, offered to pay Justice Clarence Thomas $1 million/year for the rest of his (or John's ) life if Justice Thomas would agree to step down from the U.S. Supreme Court.  To sweeten the deal, John also threw in a luxury motor coach worth $2.4 million.  He gave Justice Thomas thirty days to accept the offer.  He said repeatedly that his was a serious offer, and I think he meant it.

Unlike other unilateral offers discussed in this space, John Oliver's offer seems genuine.  He seems like he actually wants Justice Thomas to take the offer.  Paying Justice Thomas $1 million a year might be painful for John, but I suspect he will make it back by having cemented his reputation for the rest of his life as a legend of political comedy.

Friday Frivolity Update

A couple of weeks ago, I posted about this sign in my gym's locker room.  I suggested that the sign is ambiguous.  What is "use" of a cell phone.  Do all uses "Concern[] the privacy of all"?  Learned commentary suggested that all means all.  Text and policy aligns, so "Game, set, and match."

This week, my gym posted additional signage, with the still-unhelpful addition "Security Alert," which is highlighted in yellow.  Is this the power of the Blog?  Are the management team members at my gym silent admirers of the Blog?  It's okay folks.  I welcome your adoration.  Don't be shy.  I don't mind talking about contracts law while I'm on the elliptical.  

Notwithstanding the additional signage, during my brief visit to the locker room during my last visit to the facility, I noticed three people using their cell phones in the locker room to listen to something.  One of them had his phone out as he was walking, head buried in his screen, either texting or navigating to the next song on his playlist.  I was unconcerned, given that, in that posture, he could only use his camera to photograph his own face or the ground.  Imagine my surprise when I came home to find the image of a torso (right), which I recognize as my own, uploaded to the Web.  Did that guy's phone have a side camera in addition to the front and back cameras?  It's diabolical!  And so embarrassing to be photographed in winter when I'm in such terrible shape!

Curious, I quizzed the attendant at the front desk, She seemed shockingly ignorant of the Blog, and her knowledge of contracts law was generally middling.  Rather, she explained the new signage to me as a product of a number of complaints about cell phone usage in locker rooms.  I asked her if it was okay to listen to music or podcasts using a cell phone, and she assured me that the concern was with photography and telephonic conversations.  Listening to stuff is fine.  I think I need to broaden my data set, because I don't want to be found in violation of the policy, but my original inkling that there could be basic questions as to what the sign means abides.