Textualism, Purposivism, and Intentionalism for a Dime

This is a true story about an event around five years ago, which I offer for potential insight on statutory construction.

On my way home from the law school one afternoon, I stopped at a local Whole Foods market for a few items for dinner preparation. I found what I needed pretty quickly and headed for the checkout line. The cashier rang up the sale and started to put my groceries in a paper bag. "No need for that," I said. "Just hand them to me and I will carry them." The cashier complied and I tucked a couple of items under my left arm while holding onto another. "Don't forget the ten cent rebate," I said, "as I began to swipe my credit card.

"I'm sorry," said the cashier, pointing to a nearby sign, "but the rebate only applies if you bring your own bag." Sure enough, the sign plainly read:

Ten cent rebate if you use your own bag

"Sure," I replied, "but the point of the rebate is that I am saving Whole Foods from using a bag."

"That's not the policy," was the answer. "The rebate is for bringing your own bag."

"What difference does it make?" I asked. "The benefit to the environment is the same, whether I have a bag or just carry my stuff by hand."

"You have to bring a bag if you want the rebate."

And that was the end of that. I'd already taken too much of the clerk's time, and we were only talking about a dime, so I just took my goods and left. But I kept thinking about it on the drive home, and now and then ever since. What was the correct way to construe the sign? 

The text was seemingly unambiguous: ten cents off if you have your own bag. But the intention behind it was equally obvious: to save paper bags and thus impose less waste on the environment. The purpose of posting the policy likewise appeared clear: to motivate customers to forego using Whole Foods's bags, and it had the desired effect on me.  (No, I didn't take a paper bag just because I was entitled to one at no additional cost.)

I therefore offer this vignette without comment, illustrating three equally plausible methods of interpreting the same provision, only one of which cost me a dime.

Comments

[A non]

Nah, they also don't want customers carrying items out of the store by hand, dropping and breaking them, and then demanding replacements.

The only reasonable thing to have done was to have taken your shirt off, tied off the top and sleeves, and then claimed that that was your bag.

[Lee Fennell]

I agree with the clerk's interpretation. It seems highly unlikely that the only goal of the policy was to reduce paper bag use to save the environment. It was to maximize Whole Foods' returns, a more complex goal that includes saving on bag costs, making customers feel the company is socially responsible, getting customers to buy freely (rather than limiting purchases to what they can clutch to their bodies), and avoiding the clean up, bad vibes, and replacement costs that will inevitably ensue when product-clutching customers lose their grip on various items before exiting the premises. No textualism required.

[Enrique]

Alas, whichever theory of interpretation is applied, the sign doesn't define the term "bag"!

[Bill]

Although I shop at WholeFoods, my nearest food store, I have never paid much attention to the bag policy. However, it might be helpful to know about how they handle orders that require multiple bags either because they are large or the customer requests double bagging. If they charge by the bag, then there is a an inconsistency in their policy as articulated by the clerk.

[Dan Lewerenz]

Perhaps the goal is not just to save a bag, but to get customers in the habit of bringing their own bag. After all, if you had bought more items than you could carry, then you would have needed one of their bags. The advantage of reducing bag use diminishes if they're saved only in the sort of small transaction that you made. But if you always have a bag with you when you go to Whole Foods, then you save money and Whole Foods uses fewer bags--everyone wins.