A Burrito is Not a Sandwich (Again)

The question is, what is a sandwich?

Judge Richard Posner’s recent review of Justice Antonin Scalia’s book (co-authored with Bryan Garner) has revived interest in this question, because Judge Posner takes issue with how the book uses the (infamous) “Sandwich Case,” in which a state court judge in Massachusetts appeared to rely on a dictionary in ruling that a burrito is not a sandwich.

Given my long-standing casual and scholarly interests in the nature and purposes of “things” (see this ridiculously long article), Madisonian readers should not be surpised to learn that I (along with others) took note of the Sandwich Case back in 2006, when it was decided.

Here’s my original post about the case, along with copies of the court’s Order, the plaintiff’s brief (a burrito is too a sandwich!), and copies of three expert witness affidavits, all to the effect that custom, usage, and history dictate a finding that a burrito is not a sandwich.

Sandwich sillines (and clever references to chicken) aside, Judge Posner is making a serious point, as am I — although mine is a little different. Read Judge Posner’s opinion for the points he makes. My point is that legal things and “ordinary” things are distinct, even if they appear to be the same thing. “What is a sandwich?” has an answer in daily life, based on (as you prefer) the concept of a sandwich, usage of the word sandwich, the history of sandwiches, and so on. “What is a sandwich?” also has an answer in law, based on (as a court and relevant parties prefer) the concept of a sandwich, relevant usage of the word sandwich, the history of sandwiches, and so on. At the end of particular dispute, or in the context of particular legislation, the daily-life answer and the legal answer may turn out to be the same. But it is by no means given that this should be so, or even that the answer to the question should be, itself, determinative of a given problem. “What is a sandwich?” arose in the context of a Panera Bread store trying to exclude a Qdoba store from a shopping center where both were competing.

Speaking of “what is a something?,” New York Law School has just announced a copyright and publishing conference directed in part (in a provocative if understandably misleading way) to the question, “what is a book?”  The question, is, of course, virtually meaningless in the context of contemporary copyright law — and absolutely essential in the context of contemporary publishing.  Sounds like fun.