Documentary Films and Criminal Justice

Taunya Lovell Banks, University of Maryland School of Law, has published "What Documentary Films Teach Us About the Criminal Justice System - Introduction," in volume 8 of University of Maryland Journal of Race, Religion, Gender & Class (2009). Here is the abstract.

Film has been used effectively to shape public perceptions about the criminal justice system, [and] the documentary form has power to convict or release a defendant, as well as to disclose the positive and negative aspects of the criminal justice system. Three articles on this subject appear in this issue of the 'University of Maryland Law Journal of Race, Religion, Gender and Class' and add to this body of scholarship. Our goal was to foster a series of dialogues among and between a number of individuals.

Download the paper from SSRN here.

The Impact of Civil Law On Common Law

Vivian Grosswald Curren, University of Pittsburgh School of Law, has published "Voices Saved from Vanishing," at 70 University of Pittsburgh School of Law 435 (2009). Here is the abstract.

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Download the article from SSRN here.

The Third Man

Shulamit Almog and Amnon Reichman, University of Haifa Faculty of Law, have published "Ethics, Aesthetics, and Law: The Third Man’s Three Prongs," at 46 Studies in Law, Politics, and Society 169-201 (2008). Here is the abstract.

The chapter explores the role of law in society and its relation to ethical conflicts as reflected through the prism of the film The Third Man. By focusing on the complexities of life in post-war Vienna, the film exposes dilemmas that prevail in ordinary times and in functioning democracies as well. Our analysis suggests that one way to manage these dilemmas and balance the conflicting loyalties and interests they raise is to sustain open channels between the law and other narrative-generating practices from which normative stances are evaluated. The law-and-cinema discourse is one such channel and The Third Man presents, in our eyes, the vitality of that channel, due to its rich aesthetical language and its unique representation of the ethical tensions (and their consequences) in the modern era. 'War and its aftermath crush all individuals, however clever they may be.' – Sinclair (1988, p.1)

Download the essay from SSRN here.

Marriage In Fine Art

Benjamin A. Templin, Thomas Jefferson School of Law, has published "The Marriage Contract in Fine Art," in volume 30 of the Northern Illinois University Law Review (2009). Here is the abstract.

This paper studies the depiction of the marriage contract in Dutch, French and English genre paintings from the 14th to 18th centuries. Increasingly, scholars have recognized that visual imagery influences the development of legal norms and institutions. During the period studied several genre artists produced paintings that dealt with themes that were central to the issues surrounding the marriage laws, such as the rights of women or whether marriage is a sacrament or a contract. Interestingly, many of the themes depicted in the collective body of marriage contract art echoes and amplifies the issues surrounding the rights of women and the scope of the marriage contract in the writings of John Locke and Jean-Jacques Rousseau. Although it is impossible to measure the impact this collective body of work had on changing the law, the artistic and legal themes expressed in these paintings illustrates the “pre-formative” role of art in terms of signaling where change may occur in our legal norms and institutions. This analysis of the depiction of the formation of the marriage contract may also be of some interest to family law scholars given the renewed interest in the historical foundation of marriage law as a result of the debate over same-sex marriage. The analysis of visual representation of the marriage contract yields another data point for marriage scholars researching the history and origin of society’s conception of marriage as either a contract or a sacrament.

Download the paper from SSRN here.

The Rhetoric of Property Law

Johanna Gibson, Queen Mary University of London School of Law, has published "The Lay of the Land: The Geography of Traditional Cultural Expression," in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 182-201 (C. B. Graber & M. Murr-Nenova eds.; Cheltenham: Edward Elgar, 2008). Here is the abstract.

This paper examines the nature of land or territory as a linking concern in the discussion of intellectual property, traditional knowledge and the digital environment. Fundamentally, intellectual property models are circumscribed by the legal, economic and philosophical western traditions of land and land ownership and the translation of traditional knowledge within intellectual property frameworks imposes a similarly competitive, rivalrous and crowdable imperative upon that subject matter. In mapping traditional knowledge through intellectual property, traditional relationships to land (through the rendering of the knowledge embedded in that land) are similarly translated into competitive western systems, and indeed traditional and indigenous communities have been subjected to the same rationalisation, whereby authenticity is realised and "proven" externally through attachment to the land in what often derives from a colonial construction of Indigenous and traditional interests. This construction is vested in the continuity of connection to place and geographic community which ultimately betrays a self-conscious western construction of cultural resources and knowledge. That is, such knowledge and the relationship to that knowledge is understood only within the context of the institution of western legal paradigms and the legitimated justice of individual property interests. Notably, when it comes to the digital environment, industries based upon intellectual property struggle to chart and define territory by transforming knowledge into “land” as it were. Much has been said about the relationship between intellectual property and personal property, but what is of particular interest to this paper is the way in which an idea is reterritorialised by intellectual property models so that land ownership (at least in a conceptual sense) becomes intriguingly relevant. In examining the role or interference of intellectual property in traditional knowledge protection and indeed interpretation, this paper examines the former not through the expression of ideas as chattels but rather through the way in which ideas and information relate to territories; that is, the relationship between intellectual property frameworks and, not goods (as personal property), but land (as real property).

Download the essay from SSRN here.

Student Law and Film Societies in the U.S.

For a listserv (the LAWPROF list) I put together some information on Law and Film Societies (not student orgs devoted to entertainment/sports/media law and career opportunities) at U.S. law schools. I'm reproducing it here.

These societies have as their sole or added mission to show and discuss movies. I’ve also included some initiatives undertaken at some schools to increase interest in and awareness of law and film. This list doesn’t include law and film courses (too many to list), festivals, or symposia although some respondents reported on those and they are extremely interesting. A lot of those are listed here as I hear about them.

The Columbia Law School Film Society. This club has a website at http://www.columbia.edu/cu/newmedia/film/film.htm but does not seem to have been updated in years, which suggests it is defunct. If someone at Columbia (or elsewhere) can verify that it is funct, please let me know. However, at least one other group has shown a movie (A Class Apart) recently: The American Constitution Society (http://www.acslaw.org/node/8445).

Harvard has a law and film series associated with the Program on Negotiation (see http://www.pon.harvard.edu/category/events/pon-film-series/?cid=72). Jennifer Schulz, now at the University of Manitoba, led the discussion on the film Chocolat (refreshments included chocolate).

Seton Hall University School of Law’s Marc Poirier reports that there was a school-wide group, active for years, that seems to have ceased this year, possibly because of overscheduling; students have such a wide variety of activities to choose from now. In addition the Lambda Legal Alliance (for which he is faculty advisor) decided this year to do a film series, with three each semester, accompanied by introductory talks and/or discussion, but he is unsure at this point whether it will take off. He also reports that some student groups are trying to organize film series.

John Radsan at the William Mitchell Law School also ran a “spy/crime” film series showing such films as “Goodfellas,” “In the Name of the Father,” and “Syriana.” Professor Radsan also moderated an event called A Strange Bond: The CIA and the Cinema which appeared on public television in Minnesota. Included on the panel were Mark Bowden (author of Black Hawk Down) and John Rizzo (the then Acting General Counsel of the CIA). To welcome new students to Wisconsin Law this summer, the school also sent them all a copy of the novel, The Spy Who Came in From the Cold, and later held an event in the auditorium to discuss the book and to play the movie on the school’s big screen.

Villanova Law School is starting up a student law and film organization this fall. Currently it is co-partnering with the Tax Law Society, which will provide refreshments for both groups. It will show its first film on September 29th.

The University of Chicago Law School Film Fest at http://www.law.uchicago.edu/studentorgs/filmfest. Law School Film Fest is listed as a student organization. The festival is currently held annually. According to an email from a former head of the organization:

We hold several movie screenings throughout the year. Each screening is hosted by a professor, and we usually allow him or her to pick the film. The movies are sometimes law-related and sometimes just movies the professor enjoys. We order food for the students and the professor gives a brief introduction to the film followed by a discussion of the film afterward. We typically schedule events for the late afternoon, around 4 o'clock.

Last year, we experimented with holding an actual "film festival" in addition to the periodic film screenings, and it was a great success. We lined up four professors to have screenings for four consecutive days and we planned to have a movie-themed wine mess (a weekly get-together for students and professors at our school) at the end of the week, although that fell through. We usually either rent the movies or check them out from the law school library.

I think there are probably more law and film clubs/groups/societies out there. If so, and I hear of them, I will send out an updated list later on, and post an updated list here.

The Masons (Collectively, Not Perry)

And on the Freemasons, suddenly hip, with the publication of Dan Brown's The Lost Symbol.

James Ellroy Discusses American History and Crime Writing

From NPR's Morning Edition, an interview with crime writer James Ellroy, who discusses his newest novel, Blood's a Rover.

Function, Form, and the Criminal Law

Martha Grace Duncan, Emory University School of Law, has published "Beauty in the Dark of Night; The Pleasures of Form in Criminal Law," in volume 59 of the Emory Law Journal (2010). Here is the abstract.

After learning that the man she loves is the son of her 'great enemy,' Juliet goes to her window and speaks: What’s Montague? It is nor hand, nor foot, Nor arm, nor face, nor any other part Belonging to a man. O, be some other name! Unaware that Romeo is listening from the Capulets’ garden below, she continues her now-famous reflections: What’s in a name? That which we call a rose by any other word would smell as sweet. Like Juliet, numerous criminal law scholars have assumed that names are merely arbitrary symbols, capable of being changed with impunity to avoid unwanted connotations. According to these critics, the mellifluous names and definitions of criminal law are 'amorphous,' 'broad,' even meaningless. The defining characteristic of murder, malice aforethought, is said to be 'inscrutable on its face' and 'a term of art, if not a term of deception.' The premeditation-deliberation formula is criticized as a 'mystifying cloud of words.' And the various definitions of Depraved Heart Murder are dismissed as 'notoriously unhelpful,' 'a collection of colorful verbiage' that 'tend[s] to carry more flavor than meaning.' Disdaining criminal law’s figurative language, with its inevitable ambiguity, legal scholars have urged replacing the traditional terms with words whose meaning is precise and consistent. In a concrete manifestation of this ambition, the American Law Institute sponsored the creation of the Model Penal Code, which has been adopted in part by roughly half the states. The explicit purpose of the Code is to 'dispel the obscurity of the Common Law.' In contrast to these critics, Professor Duncan’s article seeks to show that the Common Law language of Criminal Law is valuable for its meaning, its beauty, and its rich historical resonance. Rather than being a failed attempt at precise language, the Common Law terms are, she proposes, a different kind of language altogether. It is what philosopher Philip Wheelwright calls expressive or depth language, whose ambiguity stems not from sloppiness but from an effort to unite diverse associations and thereby invent new meanings.

Download the article from SSRN here.

The Effects of Advertising

Mark Bartholomew, University at Buffalo Law School, has published "Advertising and Social Identity." Here is the abstract.

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.

Download the essay from SSRN here.

Bad Boys

Randy Cohen reviews the forthcoming Emmy show this Sunday on CBS and considers whether police dramas say anything true about the world of law enforcement.

Sports Metaphors and Analogies In Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published "Sports in the Courts: The Role of Sports References in Judicial Opinions," in Villanova Sports and Entertainment Law Journal (forthcoming). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the Article from SSRN here.

Law and Lawyers in Post-Colonial Literature

Renee Newman Knake, Michigan State University College of Law, has published "Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature," in volume 32 of Journal of the Legal Profession (2008). Here is the abstract.

The portrayal of lawyers and judges in postcolonial literature is a worthy area of study largely overlooked by the legal academy. To be sure, a significant body of academic writing has been devoted to traditional Western literary figures like Atticus Finch from Harper Lee’s TO KILL A MOCKINGBIRD. Less attention, however, has been given to the legal characters depicted in postcolonial novels such as Hamilton Motsamai from Nadine Gordimer’s THE HOUSE GUN or the magistrate from J. M. Coetzee’s WAITING FOR THE BARBARIANS. This Article examines Motsamai and the magistrate, among others, and asks what their stories offer to our collective understanding about the ethical duties and obligations of those trained in the law. The significance of their stories, at least in part, is seen in their attempts to reconcile the disconnect between the rule of law and their individual morality - a disconnect that causes many attorneys to become dissatisfied with the practice of law. Likewise, by expanding the canon of law and literature their stories offer us a new perspective through which we may better comprehend and appreciate the choices that lawyers make in the pursuit of justice. Moreover, these postcolonial novels demonstrate that insights of law, lawyering, and ethical conduct can be found beyond the standard courtroom drama.

Download the article from SSRN here.

The "House" Effect?

According to this article from MSNBC.com, some "House" viewers are taking the show too seriously, which can result in demands on physicians for unnecessary exams and tests. Sounds a little like medical students, who come down with whatever disease they're studying that week in class. That's an actual phenomenon. See here.

"Just the Facts, Ma'am"?

Kenneth D. Chestek, Indiana University School of Law, Indianapolis, has published "Judging by the Numbers: An Empirical Study of the Power of Story." Here is the abstract.

The recent debate about whether 'empathy' is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or 'stories,' are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a 'pure logic' brief, while the other brief on each side made the same logical argument but also included a great deal more context and interesting, but legally irrelevant, background details to tell a more complete story. Groups of appellate judges, law clerks, appellate court staff attorneys, practicing lawyers and law professors were then asked to read two briefs on a randomly-assigned side of the case (either Petitioner or Respondent), and then report which of the two briefs was more persuasive.

The key findings of the study were that appellate judges, along with most other groups, indeed found the 'story' briefs more persuasive. The exception was the law clerk group, which found the logic and the story briefs equally persuasive. The author then speculates as to why the clerks reacted differently, and considers the implications of this finding on law school curricula.

Download the paper from SSRN here.

Brief Writing As Story Telling

Helen A. Anderson, University of Washington School of Law, has published "Stories about Storytelling: 100 Years of Brief Writing Advice." Here is the abstract.

This essay looks at examples of brief writing advice from the early to mid-twentieth century. Although criticism of verbosity and disorganization has been a consistent part of such advice to this day, there are also important changes over time. First, the modern brief is a relatively recent invention, not an ancient legal tradition. Briefs were originally just what the name suggests: short abstracts of the legal argument to be fully developed orally. During the twentieth century the importance of briefs and oral argument reversed - now the brief is the primary means of persuasion while the oral argument presents the abstracted highlights. Second, the debate about the relative importance of reason and emotion, logos and pathos, or law and storytelling, is an old one, and likely to continue. At the beginning of the twentieth century, brief writers were told to avoid emotional or narrative appeals and present only the logical legal argument. But in the wake of legal realism a few decades later, lawyers were told to craft their arguments like artists and novelists. Today, we appear to be in a period where the importance of narrative is enjoying increased recognition once more. The wisest advisors, however, have always urged the use of both logic and narrative in an attempt to persuade.

Download the paper from SSRN here.

A Conference On Law and Love

From Professor Linda Meyer, Quinnipiac Law School

We invite you to join us for a one-day conference on Law and Love, to be held at Quinnipiac Law School on Saturday, October 3, 2009.
While some of the most significant and provocative interdisciplinary legal scholarship over the last two decades has emphasized the constitutive relation between law and violence, with this conference we hope to engender a new engagement with questions that may be said to be repressed in the concerted focus on the law-violence dyad. Speakers will include Jennifer Brown (Law, Quinnipiac), Marianne Constable (Rhetoric, UC-Berkeley), Jennifer Culbert (Political Science, Johns Hopkins), Anne Dailey (Law, University of Connecticut), Tom Dumm (Political Science, Amherst College), Jon Goldberg-Hiller (Political Science, University of Hawaii), Susan Sage Heinzelman (English, University of Texas-Austin), James Martel (Political Science, San Francisco State University), Naomi Mezey (Law, Georgetown), and Nomi Stolzenberg (Law, University of Southern California).
The conference will convene in the Faculty Commons at Quinnipiac Law School from 9 am to 6 pm. Parking is available in the Visitor's Lot next to the law school. To RSVP, or for more information, please contact Prof. Linda Meyer (Linda.Meyer@quinnipiac.edu) or Prof. Martha Umphrey (mmumphrey@amherst.edu).

Idris Elba Will Star In New BBC1 Crime Drama

The Wire's Idris Elba will star in a new crime drama written by Neil Cross for BBC1. Mr. Cross describes the series, called Luther, as "an intense psychological thriller which examines not only human depravity but the complex nature of love...." The series "will turn the crime genre drama on its head," by revealing the killer at the beginning of the episode, says the BBC. Really? I thought Columbo became famous for that twist a while ago.

Lawyers, Lawyers, Everywhere

Elizabeth Chamblee Burch, Florida State University College of Law, has published "There's a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss." Here is the abstract.

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, joinder, and preclusion.

Download the paper from SSRN here.

Chocolat and Mediation

If you missed it, check out Jennifer L. Schulz's Confectionery and Conflict
Resolution? What Chocolat Reveals about Mediation, Negotiation Journal, July 2006, at 251. Here's the abstract.

A close analysis of the film Chocolat discloses a new metaphor for the
mediator — the mediator as cook. The use of this metaphor throughout
the film suggests new insights about mediator style and practice.
Specifically, the mediator–protagonist in Chocolat demonstrates that:
(1) mediations need not be voluntary to be sound, (2) non-neutral,
directive, evaluative mediators can be effective if they individualize
their approaches to each disputant and dispute, and (3) effective
approaches to mediation celebrate emotion and pleasure, contrary to
many conflict resolution theorists who write about the importance of
emotions, but do not privilege them in practice.

Business Law and Narrative

Michigan State University College of Law is hosting a symposium on business law and film called the Business Law and Narrative Symposium. The symposium takes place in East Lansing on September 11. Here's a description.

Narratives are stories.

Narratives both reflect and influence society, from the broadest popular cultural viewpoints down to the private communications between individuals. This dynamic process begins with the narrator, whose technique and viewpoint influence how the story is told. A successful narrative influences the viewpoint of the audience, modifying public perceptions of the subject. These changing public perceptions in turn influence the viewpoint of future narrators. Through this dynamic narrative process, public viewpoints evolve, leading to changes in the cultural, political, and legal landscapes.

Business narratives include the stories told within the legal profession, as well as those communicated to the general public through a vast array of media, including news, books, movies, and the Internet. Recent business narratives include the Bernard Madoff scam, the auto industry woes, bank bailouts, and the subprime mortgage crisis. From Enron and Martha Stewart to the current crises, new villains emerge, forever changing public perceptions of business and the corporate world.

A symposium at the Michigan State University College of Law invites general treatment of the question of how narrative influences the cultural and political understanding of business and how narrative might–or might not–play a role in corporate law.

Recent events bring to the fore a call on narrative as a means of interpreting what has happened, with possibilities for simple explanations that attempt a narrative form. Distinguished corporate law experts and scholars in history, literature, and narrative will present their papers and discuss the challenges narrators face in creating an accessible, widely shared account of business culture, corporate law, or financial events, given the complexity of business and the abstract nature of the corporation. Do such business narratives supply a widely shared consensus comparable to large narrative understandings of other social enterprises? Do cases or scholarship deploy narrative materials? If so, how might they be evaluated as narrative? Does literature constitute a source of insight that informs the social understanding of business realities and personalities? How does gender influence narrative?

MSU Law Professor Mae Kuykendall organized the symposium to further explore the intersection of business law and narrative, as discussed in her 2007 article, "No Imagination: The Marginal Role of Narrative in Corporate Law." Distinguished corporate law experts and scholars in history, literature, and narrative will gather to address these questions on September 11, 2009, at the Michigan State University College of Law. The Michigan State Law Review will publish the papers presented in what promises to be a trenchant discussion of an important topic. We invite you to join us for our discussion of business law and narrative.

Here's a link to the program.

Law In Willy Wonka

Jeanne C. Fromer, Fordham Law School, has published "Trade Secrecy in Willy Wonka's Chocolate Factory," in The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research (Rochelle C. Dreyfuss and Katherine J. Strandburg eds.; Edward Elgar Publishing, 2010). Here is the abstract.

Roald Dahl’s "Charlie and the Chocolate Factory" is well-known as a dark fantasy in which five children win a visit to a whimsical candy company. Less conspicuous is the legal issue of trade secrecy driving the novel’s plot. Secrecy is not indigenous to fictional representations of the candy industry, but is widespread throughout its real-world confectionary counterparts of today and yesteryear. An investigation of the need for secrecy in this commercial sphere raises fundamental questions about the role of legal protection for misappropriations of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent law.

Download the essay from SSRN here.

The Culinary and Contract Law

Marjorie Florestal, McGeorge School of Law, has published "Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts," in volume 14 of the Michigan Journal of Race and Law (Fall 2008). Here is the abstract.

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts - so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on 'common sense' and a single 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 only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the 'primitive formalism' Judge Cardozo derided nearly ninety years ago when he said '[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view today.' Does it? Despite the title of this piece, my goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, I explore what lies beneath the 'primitive formalism' or somewhat smug determination of the court that common sense answers the question for us. I suggest Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. I explore this bias by examining the determination of this case and the impact of race, class and culture on contract principles.

Download the article from SSRN here.