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The limitations of textualist construction in statutory interpretation

Based on a mostly enthusiastic review in the New York Times by Stanley Fish, I purchased “Reading Law: The Interpretation of Legal Texts,” by (Supreme Court Justice) Antonin Scalia and Bryan A. Garner.  While generally not a fan of Scalia’s originalist approach to constitutional law, I find his textualist approach to generally be a sound first principle for statutory and contract interpretation.

Where I find myself in greatest agreement with textualists is their view that the language within the document is the primary basis to interpret the text and that intent in the manner commonly used in such interpretation has no legitimate purpose.  Textualists distinguish two types of intent: the intent of the text and the intent of the authors.  They perceive textual intent (for this meaning Scalia often substitutes the word “purpose” for “intent”) as being a legitimate, even necessary, basis for interpretation.

Scalia uses the example of how the word “nail” might be interpreted differently in statutes regulating home building and beauty salons.  One must determine the purpose of a document or law to begin interpreting it.  However textualists reject the use of the author’s intent as a method of interpretation because they find such intent to be contradictory and elusive and therefore use of such intent allows judges to override the text’s meaning, and substitute their own policy preferences, by choosing whose intent to elevate.

Yet the very first canon this book elucidates highlights the limitations of textual interpretation.  The demonstrative example is a lawsuit brought by Panera Bread against its landlord over an alleged lease violation.  Per Scalia, Panera’s lease contained an “agreement that forbade the shopping center to lease space to any restaurant whose ‘annual sale of sandwiches’ might be expected to exceed 10% of the restaurant’s income.”  The shopping center later leased “space to a Qdoba restaurant, which sold exclusively tacos, burritos, and quesadillas.”  Panera filed a declaratory judgment action in the Massachusetts state court and the interpretative issue was whether tacos, burritos and quesadillas are “sandwiches,” a term that was not defined within the lease.

According to Scalia, the court “relied upon a reputable dictionary, which defined a sandwich as ‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.’”  Finding that Qdoba’s food did not meet this definition of sandwich, the court denied injunctive relief, a holding that Scalia writes “was properly denied on grounds that no reasonable speaker of English would call a taco, a burrito, or a quesadillas a ‘sandwich.’”

Is that so?  The definition of sandwich supplied by the Massachusetts court is clearly narrower than the general understanding of what constitutes a sandwich.  Does an open-face sandwich stop being a sandwich because it is only on one slice of bread?  Does a hamburger stop being a sandwich because it is on a bun rather than on “two thin slices of bread.”  Does a hoagie, hero or grinder stop being a sandwich because the filing is nestled within an elongated one-piece roll?  Does removing chicken from two thin slices of bread and placing it into a wrap or pita turn it from a sandwich to a non-sandwich?

One reasonable definition of a sandwich might be “a filling surrounded by breading, commonly eaten with one’s hands.”  This definition of a sandwich would encompass tacos, burritos, and quesadillas.  This is the interpretation of sandwich that Panera would certainly have urged upon the court.  Such a definition was likely Panera’s expectation (if not the landlord’s expectation) when it entered its lease.  The intent of the text (not the intent of the parties) was that Panera would not face certain types of competition as part of its agreement to lease space in the shopping center. While a taco stand might be stretching the definition of sandwich, a gyro shop seems much like a sandwich but fails to meet the Scalia-approved definition of a sandwich.

Textualism cannot objectively answer the question of what is a sandwich.  The intent of the text was to limit certain, but not all, types of direct competition with Panera.  Textual analysis makes clear that leasing to a Subway would violate Panera’s lease.  Textual analysis also makes clear that leasing to a stir fry or pasta restaurant would not violate the lease, even if such establishments would directly compete with Panera.  However, textual analysis cannot decide grey areas such as a gyro shop or taco stand.

When Scalia uses the narrowest possible definition of “sandwich” he makes a policy choice with no canon of statutory construction to demonstrate why his narrow definition is preferable to a broader definition that might have supported injunctive relief.  A general policy preference against restraints on competition leads to a preference for a narrow definition of sandwich.  An understanding that landlords have much greater say then commercial tenants in the selection of co-tenants, and that bargained-for restraints against direct competition should therefore be given broad interpretation, leads to a preference for a broader definition of sandwich.  It is a fallacy that neutral principals, rather than policy choices, can be use to decide this dispute.

Finally, I note that I find debating about how to define “sandwich” to be intellectually fascinating.  Those who think similarly will probably love law school and enjoy practicing law.  Those who find such an argument inane–perhaps insane–will be happier in a different field of work.

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