I have a new piece in Discourse Magazine that’s a little meandering and theoretical; I go from observing Starbucks employees pouring out small amounts of leftover Frappuccinos to thinking about how the internet exposes us all to each other’s quasi-private shop talk, to praising old-school Ralph Nader-style consumer advocacy.

The question I’m thinking about here is: who actually owns the small amount of leftover drink that might be…leftover, i.e. doesn’t fit in the cup size purchased? Does the store own it—entitling them, as their policy dictates, to dump the leftovers—or does the customer own it, because it was used to make the drink he ordered and paid for?

I think this is interesting. It’s one of those legal questions that never gets tested unless, I guess, a customer actually sues Starbucks over an ounce of leftover Frappuccino, and a judge actually hears the case and decides that yes, if you really have to pin down an answer, the ownership of that leftover drink really does go to one or the other party. Until then—and I don’t suppose that would ever happen—it’s just company policy against whining customers.

If you think that’s too arcane a thing to even wonder about, there are other seemingly arcane or even absurd questions that have gone before judges. I love this:

Here is a fascinating thread on X about exclusivity clauses in shopping centers—where major retailers get the terms of their lease to stipulate that no competitor will be allowed in the shopping center. They have this leverage because they’re desirable tenants to the commercial landlord.

But this can raise some very interesting questions. If the clause says, for example, “No other sandwich shops,” what’s the legal definition of “sandwich”? The thread author gives a real-life example: A bagel shop that cut the bagels in half and spread them with cream cheese was accused of selling “sandwiches” by a sandwich shop in the same center. What about a falafel shop stipulating no other “Mediterranean food”? Does that ban gyros? (What about tacos al pastor? Could a Panda Express ban a pollo a la brasa shop from selling Peruvian fried rice?) Starbucks—apropos here—will often have clauses preventing other tenants from selling espresso or coffee drinks.

Most of the time the definitional disputes over these clauses are probably settled without litigation, but sometimes it comes to that. In 2001, there was a court case settling a dispute between Panera Bread and Qdoba Mexican Grill. Panera accused Qdoba of selling “sandwiches” in violation of a no-sandwich clause; the “sandwiches” in question were burritos. The judge determined that a burrito is not a sandwich, and it came down to this: “Worcester Superior Court Judge Jeffrey A. Locke cited Webster’s Third New International Dictionary definition of a sandwich and explained that the difference comes down to two slices of bread versus one tortilla.”

The bit about shop talk and the internet was inspired by reading the comments on Reddit from Starbucks baristas, snarkily talking about how they’d like to grin at a pushy customer while dumping the leftovers down the drain, or whatever. And I realize what that actually is is venting or shop talk, from people who work high-pressure, frustrating jobs dealing with the general public all day. But separated from its context, and abstracted into words on a screen, it reads differently.

Reading the things people say when they’re in this venting/shop-talk mode is not the same thing as—maybe the opposite of—actually experiencing what they’re experiencing. I’ve only very briefly worked in customer-facing jobs, but I can certainly place myself in the shoes of someone working a counter and getting pestered and critiqued and side-eyed and asked to speak to a manager over meaningless nonsense all day. That’s enough for me to empathize with people who get fed up dealing with customers. Certainly, if I actually worked one of these jobs, I’d feel the same way, at least some of the time.

But reading these snide comments on Reddit doesn’t make my brain go “this is how people working busy, stressful jobs decompress and vent a little to other folks working the same kinds of jobs.” Instead, I have to consciously stop myself from perceiving their comments as direct threats or attacks. Some would say that’s on me. I think it’s on the internet. The whole nature of the internet is 1) disembodying real people and 2) oversharing and a collapse of the private-public distinction:

It’s not healthy to be exposed to other people’s shop talk like this. It induces distrust, which is why shop talk should stay in the shop. Your preconceived idea of who someone might be turns you into their preconceived idea of who you might be. If you go in thinking “Are you one of those bastards who thinks I’m a bastard?” then you’re the bastard.

On some level it’s a kind of vice to expose yourself to other people’s private thoughts, even if they are technically being published to the world. This, by the way, is the fundamental issue with the internet and especially with social media. By nature, it blurs the public-private distinction. It introduces a layer of meta-friction into real life, because suddenly you have, or think you have, some foreknowledge of who or what a total real-world stranger really is.

I really mean it when I say exposing yourself to other people’s shop talk is a kind of vice. It’s almost like gossip. Everyone needs a little bit of leeway to grumble and whine, and everyone needs the space not hear themselves being grumbled and whined about. The internet makes you feel like you can just vent to nobody in particular, but instead, your private frustrations are now on the record. They become part of the “discourse.” Their existence makes it difficult for those who come across them to pretend they don’t exist, and to wonder which real people they encounter secretly hold these views they shouldn’t really even be aware of.

I had a thought, once—not related, now, to the baristas—about this whole debate over free speech on the internet. Unfettered freedom of speech exists in the literal public square. And yet you don’t get Nazis or unironic Marxists or general kooks literally standing in public places all the time sharing their ideas with us. Yet in un-moderated internet spaces, that basically happens. I don’t mean that free speech doesn’t apply to the internet as much as I mean that something about the internet changes how we communicate and interact.

As far as that question of who actually owns the leftover ingredients used to fulfill an order, well, I don’t know, but I feel like each side’s view—Starbucks saying it’s ours, customers feeling it’s theirs—is an argument. There isn’t an answer that I’m aware of.

But this does make me think of two more potential legal questions that could be (and maybe have been) litigated.

First, should all-you-can-eat restaurants be allowed to prohibit the taking home of leftovers, even if you pay for them? I’ve seen this occasionally, typically at all-you-can-eat restaurants where the food is made to order and there’s no carry-out option. Basically, they’ll charge you for leftovers to prevent waste, but not allow you to pack them up and take them home even after you’ve effectively paid for them. Personally, whether it’s legal or not, I despise this, and it feels too much like the application of end-user-license-agreement logic to the real world. (I.e., by sitting down in this restaurant, you’re agreeing to a bunch of terms that are irregular when it comes to normal expectations about ownership and rights.)

Here’s another one: should members-only stores like Costco, which are not open to the general public, be allowed to receive tax or infrastructure benefits on the public dime? How can the taxpayers in general be made to pay in some way towards benefits that they cannot avail themselves of?

If I have any retail and/or legal experts here, I’d be curious if these questions have ever been tested in some way, or if you have some other wacky, arcane example of something like this!

Now, finally, I’m going to question all of this. I sometimes wonder how much of this meandering, abstract, ideas writing is really something like “I had a silly thought about something that didn’t matter, but instead of telling myself that, I assume my silly reaction is a revelation about the nature of the thing, and I’m going to go write a philosophizing essay trying to uncover the imagined real thing that made me have my silly reaction.”

In other words, I kind of want to do a check here and make sure it’s not fundamentally unreasonable of me to see a busy barista pour out an ounce of sugary ice, and read some snarky Reddit comment about (metaphorically) poking entitled customers in the eye, and then write a 1,500 word essay about shop talk and the internet and how we handle exposure to different ideas and consumer advocacy and legal theories about ownership, instead of just thinking to myself, “Huh, must be a tough job, but maybe if not getting that last ounce of Frappuccino bothers me, I just won’t order one.”

I want to make sure that I’m not mistaking for ideas my own pet peeves wrapped up in fancy words. And, while this essay isn’t about urbanism at all, I especially hope this isn’t what urbanism amounts to—a personal preference for the city or for urbanity or for cosmopolitanism, out of which a whole apparent but thin philosophy is reverse-engineered.

I don’t think so, and I’ll end with my essay’s ending: sometimes we can’t tell, except looking back, when a cause was worthy and when it was small-ball or petty or silly. That’s why Ralph Nader and his ilk and the idea of consumer advocacy is important.

The FTC once gave Campbell’s Soup a hard time for putting marbles in the bottom of the bowl used in their advertising shoot. You remember: The marbles would make all the stuff in the soup float to the top, implying that there was more stuff in the soup than there really was. (A consumer group at the time wanted the FTC to go further and sue Campbell’s, which they declined to do.)

You can dismiss all this, affirm that people aren’t that stupid, remember the wisdom of “buyer beware,” snicker that of course it’s not going to look like the ad. But ... why? If the ad doesn’t show what you’re buying, then what are you buying? There’s a point at which a certain libertarian-ish attitude on these matters can become a willingness to be screwed with.

The consumer advocates of the 1970s and 1980s believed we should be able to trust what we were buying and who we were buying from, and that it was a legitimate use of the state’s power to make that so.

Starbucks baristas dumping an ounce of sugary ice in the middle of a rush is probably not on the order of sneaky warranty policies or dishonest advertising. But Starbucks, the company, treating its own self-interested point of view on the leftovers matter—that the cup, and not the ingredients, determines what was bought and owned—as an obvious fact, might be. Likewise, I can understand how applying the principle of consumer advocacy here could make things harder for people whose jobs are already stressful and difficult. But I’m also inclined to think that when customers feel as though a corporate policy is unfair or frustratingly arbitrary in favor of the company, they’re more likely than not to be on to something.

Related Reading:

Now, Folks, It’s Time For “Who Do You Trust!”

SUVs and Malt Beverages

No Time To Dine

Thank you for reading! Please consider upgrading to a paid subscription to help support this newsletter. You’ll get a weekly subscribers-only piece, plus full access to the archive: over 1,100 pieces and growing. And you’ll help ensure more like this!

Share