Sunday, May 06, 2012

Clear the Deckers

Sometimes, the process of tariff classification can force lawyers and judges down a rabbit hole of grammar and legal analysis. For me, Deckers Outdoor Corp. v. United States is one of those cases.

The only real issue in this case is the legal question of whether the tariff term "footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners" includes UGG Classic Crochet boots. Here is an image for reference.  Since this image is not from the official UGG web site, I can't vouch for it:

The question presented is whether U.S. Customs and Border Protection correctly treated this boot as a slip-on. According to the plaintiff, the term "slip-on" does not include boots (i.e., footwear that extends above the ankle). Rather, plaintiff asserted that a "slip-on" is a category of shoes that is exclusive of boots and, more specifically, exclusive of boots that must be pulled on manually. As I understand this, the argument is that a "slip-on" is what I would call a loafer. In women's shoes, it would also include mules and clogs (or so I am told).

These decisions must be made with great respect to the drafters of the tariff schedule, for good or ill. In this case, it might be ill. I say ill, because I think the decision turns on a potentially ungrammatical use of a comma and the word "that." Remember, the relevant language is: "footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners."

Grammar Girl, Bryan Garner and other grammarians, correct me if I am wrong.  The way I read that phrase, without the comma after "type" the "that" would mean that slip-on footwear may be held to the foot with OR without laces, etc. and this tariff item is applicable only to the latter. This is because "that" is a restrictive modifier. In that case, I think the comma is unnecessary. On the other hand, if slip-ons are necessarily held to the foot without laces, buckles, or other fasteners, then the proper word would be "which" and the comma would be appropriate. That is because "which" is not restrictive. Rather, it is descriptive. I'm not sure this matters here because, as a matter of obvious facts, these items have no laces, buckles, or fasteners. But, the analysis does matter for future cases.

 The Court of International Trade took a slightly different approach and equated "that is" in the tariff language with the Latin id est (usually seen as "i.e."), meaning "in other words." The tariff phrase, as interpreted, would then be: "footwear of the slip-on type (i.e., held to the foot without the use of laces or buckles or other fasteners)." In that construction, the sentence is clear and it means that slip-on footwear never has laces, buckles, or fasteners." The sentence as written is enough of a jumble that it is hard to tell, but I think it actually means that slip-ons might have fasteners but that slip-on footwear with fasteners goes somewhere else in the tariff schedule.

Honestly, though, it is hard to tell and, as I said earlier, this may be a rabbit hole of over thinking.

The second issue was whether slip-on footwear might include pull-on boots. On that point, the Court looked to commercial usage including trade dictionaries and e-commerce web sites to find that the term "slip-on" is commonly applied to boots.

Thus, the Court of International Trade granted the government's motion to dismiss.

1 comment:

Sarah said...

"footwear of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners."

The way I read that, it sounds as though it means to clarify what slip-on footwear is. The confusing thing to me here is the redundancy. Slip-on footwear inherently lacks any sort of fastener by definition, does it not?