Sponsored Post: Contract Interpretation (in the Real World)

The following post is by Lawrence Cunningham (George Washington) and former GuestPrawf Miriam A. Cherry (SLU), and is sponsored by West Academic.

Recently a couple of fun and whimsical cases about legal interpretation have appeared in the headlines. The first case, O’Connor v. Oakhurst Dairy, involved a Maine statute that exempted certain groups of workers from eligibility for overtime wages. The dispute ultimately centered on a missing oxford comma in the statute. The end result was that the transportation workers were able to collect $10 million in overtime wages, so unlike the perception of grammar questions as insignificant matters, this one certainly had a real-world impact.

The second case involved a familiar piece of kitsch, the snuggie, which its marketers advertised as a “blanket with sleeves.” An article from Bloomberg News describes the case, and the case itself, Allstar Marketing v. U.S., can be found here. The tax code provided for a lower rate for imported blankets than it did for clothes; the dispute centered on whether to classify the snuggie as a blanket or clothing. Back in 2009, when the snuggie first came out, a reporter tried wearing a snuggie outside, in public; the reporter received strange looks from children and kept tripping over the snuggie. The court ultimately agreed with the reporter’s anecdotal assessment, noting that the snuggie seemed mostly to be for indoor use. The court noted that the snuggie had no snaps or clasps, as one might expect from clothing. Ultimately the court applied the lower tariff rate applicable to blankets.

While these two headline cases deal with interpretation questions in statutes or codes, many of the same questions and issues present themselves in contracts. We are delighted to announce that we have signed a contract with West Academic Publishing for our forthcoming casebook, Contracts in the Real World, which we expect to be available for adoption staring in Fall 2018. Our casebook features contemporary cases, ripped from the headlines, juxtaposed with the canonical cases establishing or classically used to illustrate fundamental principles. So in addition to the familiar discussion of interpretation in the “what is chicken” case that many of us read in law school, we have also included the more recent issue of whether a burrito is a sandwich.

We also discuss what happens when the parties sign a contract and then technology changes rapidly. This is exactly what happened to controversial rapper Eminem, who signed a long-term contract in 1995 that provided different royalty rates for “records sold” versus “masters licensed,” but which never set out royalty rates for digital downloads of music or cellphone ringtones. Eminem successfully argued that the wording of the language of the contract allowed him to recover under the higher royalty rate. As with the overtime case, the language and grammar used mattered to the court.

Recent cases spark student interest. In our experience, students enjoy the more contemporary vibe, with hypos about everything from Uber’s surge pricing (and whether it causes economic duress), to cases about the recent housing crisis (and the doctrine of unconscionability), to the augmented reality game PokemonGo.

Our casebook’s rich provenance may be familiar to some of you. It emerged from Larry’s Cambridge University Press book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, which was featured in a Concurring Opinions Symposium online as well as a symposium in the print version of the Washington Law Review. In preparing those materials, our background research examined all of the leading Contracts casebooks to assure that all of the canonical cases and doctrines appear, while assuring contemporary illustrations and treatments.

We are circulating the manuscript for a final test run to select colleagues—let us know if you want to volunteer – but in the meantime, what is your favorite interpretation question (contract or otherwise)? Even though a court has ruled that a snuggie is a blanket, lingering questions still remain. What do you think: Is a burrito a sandwich?