On burritos, sandwiches, and the law

The influential federal judge Richard Posner turned some heads recently with a long review of Justice Antonin Scalia’s new book Reading Law. In the critique, which serves as more of a general indictment of Scalia’s school of textual originalism, Posner digs in with some strong words. The whole thing has kicked off a back-and-forth worth reading. But why should I care about a verbal judgefight — even one that pits the great Posner against Scalia?

The answer, as is so often the case, lies at the nexus of burritos and sandwiches. Unsurprisingly, Posner and Scalia have differing opinions on the 2006 landmark burrito law case White City Shopping Center, LP v. PR Restaurants, LLC — more hilariously styled Panera v. Qdoba — in which a Massachusetts judge held that a burrito is not a sandwich. Panera, whose lease agreement with the White City Shopping Center prohibited the mall from renting to another sandwich vendor, could not prevent Qdoba from moving in and selling burritos.

Scalia applauds the decision; Posner is more skeptical. In particular, he doesn’t think the dictionary definition of sandwich used in the case (“two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them”) goes far enough. Judge Posner:

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). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.

Posner does not go so far as to suggest that a burrito is a sandwich, just that the judge and Scalia arrive at the correct conclusion for the wrong reason.

The dictionary definition is corroborated by other governmental institutions. The USDA’s Food Standards and Labeling Policy Book [pdf], for example, gives a guideline for how a burrito may be labeled:

A Mexican style sandwich-like product consisting of a flour tortilla, various fillings, and at least 15 percent meat or 10 percent cooked poultry meat. The flour tortilla is rolled and may or may not have tucked ends.

Tucked ends are optional, but the product is ultimately sandwich-like, not a sandwich. And sandwich determination matters in the federal government: as a 2007 GAO report noted, the USDA covers open-faced sandwiches, while the FDA covers closed-face (on two slices of bread).

To my mind, burritos, falafel, wraps, and similar products fall into a category sometimes dubbed the Urban Food Log. Are UFLs a proper subset of sandwiches? On what grounds could a reasonable person justify such a distinction?

One of the all-time classic burrito v. sandwich essays, Good Magazine‘s Is a Burrito a Sandwich? offers an answer. We decide the classification with a gut take, and that intuition is informed by cultural factors. Good says:

No unifying theory exists to classify your meal by appearance, ingredient, or construction method. The sandwich is a social compact between lunchers: We have come to a consensus on a group of foods that we will call “sandwiches,” one that defies even the most obvious attempts at classification. … That degree of universal cultural acceptance doesn’t happen overnight. The burrito has a long time to wait.

Diving deep into the notion that a burrito is not a sandwich for cultural reasons, the excellent and very readable Michigan Journal of Race and Law article incredibly titled “Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts” makes some compelling points about Panera v. Qdoba and its unstated racial undertones. Its author, Marjorie Florestal, presages Posner’s concerns about reliance on dictionary definitions, and goes further to question the supplemental materials a court might use to distinguish the two. Expert witness testimony, like that offered by Chef Christopher Schlessinger, may seem to offer direction (“I know of no chef or culinary historian who would call a burrito a sandwich. Indeed, the notion would be absurd to any credible chef or culinary historian.”) but raises more questions.

Florestal asserts that — to the extent possible — burritos have a race, and that race is Mexican. Sandwiches are white. That meant, according to Florestal, that “race played a significant but silent role in the proceedings.”

As an amateur burrito historian, I can’t help but find myself fascinated with these questions. Is a burrito a sandwich? We know what the judges say. But to extent that these definitions are built on developing cultural understanding, it’s safe to say the jury is still out.

Published by Parker Higgins

I'm the Director of Special Projects at the Freedom of the Press Foundation, and previously led copyright activism at the Electronic Frontier Foundation. I live and work in Brooklyn, New York. more »