I Swear

February 8-14, 2016

Show me the bread –two slices, please

By Vic Fleming

“Dictionaries are mazes in which judges are soon lost.” Thus said Judge Richard Posner (7th Circuit Court of Appeals) in a review of “Reading Law: The Interpretation of Legal Texts” by Justice Antonin Scalia and legal lexicographer Bryan Garner. “Omitting contrary evidence,” Posner wrote, is the authors’ “favorite rhetorical device.”

Posner posited that Scalia and Garner “applaud” a 2006 Massachusetts case called White City Shopping Center v. PR Restaurants, 21 Mass. L. Rptr. 565. In which it was held that the word sandwiches in a lease did not include tacos, burritos, and quesadillas. Why? In essence, say Scalia and Garner, because a dictionary definition cited by the trial court gives a sandwich two pieces of bread, and tacos have only one. Scalia and Garner imply that the dictionary definition controlled, claims Posner, whereas the trial court went beyond that limit.

Facts. Panera Bread had an exclusivity clause in its lease – which its attorney had drafted – with a mall in Shrewsbury, Mass. In this clause the landlord agreed not to lease to another “restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10 percent) of its total sales.” The lease did not define sandwiches, nor was the definition thereof part of the negotiations.

Along came a Qdoba grill – with burritos, tacos and quesadillas – that the landlord wanted to land. Learning of this, Panera’s lawyers sought assurance that the new tenant would not be selling too many tacos, burritos, and quesadillas. The landlord filed suit, asking the court for a declaratory judgment. Think: “Judge, tell these guys that a taco is not a sandwich!”

Citing Webster’s Third New International Dictionary of the English Language (2002), the court quoted a 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 court wrote that “Under this definition and as dictated by common sense, … the term ‘sandwich’ is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with … meat, rice, and beans.”

Hmm. My 1983 Webster’s Ninth New Collegiate’s first definition is “a slice of bread covered with a filling …, which is usually covered with another slice ….” The court noted that “The parties have submitted numerous dictionary definitions for the term “sandwich,” as well as expert affidavits” and that Panera didn’t proffer “evidence that the parties intended … ‘sandwiches’ to include burritos, tacos, and quesadillas”; and that Panera, as drafter of the clause in question, had a significant burden of proof – especially given that it was seeking a preliminary injunction by way of counterclaim.

Posner’s beef is that Scalia and Garner (two big names, let’s face it) didn’t seem bothered by the trial court’s getting the definition “wrong.” He wrote, “A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). …[Moreover,] a hamburger is regarded as a sandwich, [as is] a hot dog – and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. … A dictionary-centered textualism is hopeless.”

All right, then.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.