“You Have the Data” . . . The Writ of Habeas Data and Other Data Protection Rights: Is the United States Falling Behind?
VOLUME 94

Sarah L. Lode

Amidst a global trend of protecting individuals from unnecessary invasions of privacy and in a world culture where nations are finding more innate rights of privacy than ever before, is the United States trailing in the protection of its citizens’ personal data? When looking at changing legislation and constitutions across the globe, it is hard not conclude that the United States could learn a thing or two in the way of personal data protection: specifically, how to better protect personal medical records, treatment data, and other health-related information. American citizens are given seemingly little or no control over the use, dissemination, and storage of their personal data—this is especially apparent when United States’ legal footwork is compared with several other parts of the world. Although the United States enacted the Health Insurance Portability and Accountability Act (HIPAA) (which was passed in 1996 and is rarely updated) to provide some protection of medical data, along with several other topical data protection statutes and acts, the United States’ ad hoc approach does little to protect citizens’ personal data, which is becoming the norm in other parts of the world. Internationally, citizens are provided, and sometimes constitutionally guaranteed, avenues to challenge the use, collection, and storage of their personal data by governmental and private agencies alike. Other world citizens have access to a variety of rights and writs that allow an individual to control the use, distribution, and storage of his personal information. These rights include the writ of habeas data, the right to be forgotten, the right to erasure, the right to stop processing, and the right to access. With the goal of further understanding the changing international climate regarding personal data protection, this Note will not only discuss the past and current laws in several countries and regions—specifically Latin American countries and the European Union—but will attempt to harmonize these changing international data protection norms in a way that could allow the United States to build its own comprehensive data protection scheme. While the international trend towards more personal data protection covers a wide variety of personal data, this Note will focus predominately on the protection of personal medical records as a case study and starting point from which to propose a more comprehensive solution for reforming United States legislation.

Full article available here.




Sticks, Stones, and So-Called Judges: Why the Era of Trump Necessitates Revisiting Presidential Influence on the Courts
VOLUME 94

Quinn W. Crowley

In the United States, there is a long history of Presidents and other elected officials clashing with the courts. These clashes have often been about complex and significant issues, including the role of judicial review in American jurisprudence, slavery, New Deal legislation, and the treatment of Native Americans. Presidents choose to attack the judiciary for a number of reasons, but it is not entirely clear where the line should be drawn between legitimate acts of presidential dissent and acts of active hostility meant to undermine the legitimacy of the judiciary. Moreover, what is the consequence of a judiciary whose legitimacy is weakened over time? While the legislative branch is able to constitutionally alter the courts, primarily via jurisdiction stripping and judicial impeachment, the executive is much more limited in terms of legitimately checking the judicial branch. This Note concludes that, while President Trump’s behavior regarding the judiciary has been the subject of intense media scrutiny during his first two years in office, it is important to place his comments and actions in a historical context by looking at the examples set by past Presidents. Through this frame of analysis, this Note concludes that, although President Trump’s rhetorical attacks on the independence of the judiciary—particularly in the criminal context and in targeting individual judges—have been numerous and unprecedented, President Trump is also quietly shaping the makeup of the judiciary in a way that could become even more drastic if his administration embraces a modern Court-packing plan or continues to make judicial appointments at staggering rates.

Full article available here.




Sites of Storytelling: Supreme Court Confirmation Hearings
VOLUME 94

Patrick Barry

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing narrative—with tensions reconciled, discrepancies explained, and the presentation of a coherent, if complex, portrait of the nominee—but rather several competing biographies, many of which directly war with each other. This experience has repeated itself in virtually every Supreme Court confirmation hearing since confirmation hearings became a regular part of the nomination process in 1955. There is a lot to regret about this. Partisan bickering doesn’t need any additional forums nor is the country really at a loss for grandstanding. At the same time, however, the hearings do offer a rare opportunity to study how this very public stage serves as an important site for storytelling about America’s highest court, about the people we deem fit to sit there, and about justice more generally.

Full article available here.




Evading Constitutional Challenge: DAPA’s Implications for Future Exercises of Executive Enforcement Discretion
VOLUME 93

Lucy Chauvin

This Note focuses on how President Trump and future presidents generally can achieve deferred-action-related goals without transgressing the boundaries of permissible enforcement discretion. Part I discusses United States v. Texas and addresses the specific challenge brought to President Obama’s immigration policy as well as scholarly arguments regarding DAPA’s constitutionality. Part II identifies the constitutional source of authority for enforcement discretion and explores interplay between the executive’s somewhat conflicting duties under the Take Care Clause. Part III looks at the development of enforcement discretion over time and specifically within the context of immigration law. Part IV focuses on the historically limited role of the judiciary in this area of the law. Lastly, Part V addresses how President Trump can move forward with implementing his own immigration policy without running into the same constitutional roadblocks that his predecessor faced.

Full article available here.




Congressional Authorization of the Campaign Against ISIL
VOLUME 93

Tyler Salway

This Note argues that Congress has already expressly or implicitly authorized the use of force against ISIL through past legislation. I make this argument by applying the existing evidence of authorization of force to the framework laid by Youngstown. The argument is two-fold: that the hostilities are expressly authorized under the 9/11 AUMF and that the hostilities are implicitly authorized by congressional appropriations.

In Part I of this note, I outline both the birth and rise of ISIL. I examine the background of the organization in order to illustrate why ISIL falls within the scope of the 9/11 AUMF. Part II of this Note then explains the manners in which Congress has already granted authorization to use force. In Part II.A, I outline how Congress has explicitly authorized the executive to use force against ISIL through the 9/11 AUMF. In Part II.B, I explore how Congress has implicitly authorized the executive to use force against ISIL through appropriations. In Part III, I examine how the avenue used by the Obama administration could be used by President Trump as he continues the campaign against ISIL.

Full article available here.




Uniform Enforcement or Personalized Law? A Preliminary Examination of Parking Ticket Appeals in Chicago
VOLUME 93

Randall K. Johnson

This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. cities may employ, so as to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago: in order to gauge the uniformity, as well as the relative cost effectiveness, of the parking ticket appeals process. The Article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the applicable law. Part III explains this Article’s methodological approach, which employs percentage analysis to explain how parking tickets are distributed, how parking ticket appeals are distributed, and how frequently ticket recipients obtain relief in Chicago. Part IV outlines the Article’s findings and positive analysis, which includes the fact that more advantaged zip codes have higher administrative costs and lower error rates than disadvantaged zip codes. Part V contains its key normative recommendations. Part VI is the conclusion.

Full article available here.




Understanding the Complicated Landscape of Civil War Monuments
VOLUME 93

Jessica Owley and Jess Phelps

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial introduction of a typology for evaluating confederate monuments, serving as a foundation for an exploration into the nature of property law and monument protection.

Full article available here.




Reciprocal Immunity
VOLUME 93

Colin Miller

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Full article available here.




Intangible Fish and the Gulf of Understanding: Yates v. United States and the Court’s Approach to Statutory Interpretation
VOLUME 92

John M. Garvin

Is a fish a tangible object? The answer in most cases is obviously “yes.” But in Yates v. United States, the Supreme Court held that fish are outside the meaning of the phrase “tangible object” as it is used in the Sarbanes–Oxley Act of 2002. This Note argues that the Yates decision provides a lens with which to examine the Court’s contemporary methods of statutory interpretation. In adopting the textualist vocabulary most famously associated with the late Justice Scalia, the Justices have committed to speaking the same language. Still, fundamental differences between the Justices remain. These differences expose the inherent flexibility of the textualist approach, and its capacity to accommodate ideological, normative choices in deciding cases. The Yates decision is a model of what we can expect from statutory interpretation decisions in the future: majority and dissenting opinions that engage fully with each other’s reasoning, close readings of statutory text, and narrow focus on the facts of the case.

Full article available here.




How Conservative Justices Are Undermining Our Democracy (or What’s at Stake in Choosing Justice Scalia’s Successor?)
VOLUME 92

Alan E. Garfield

In this essay, Professor Garfield contends that the conservative justices on the Supreme Court have allowed elected officials to manipulate laws to entrench themselves in office and to disenfranchise voters who threaten their power. The justices’ unwillingness to curb these abuses has largely redounded to the benefit of the Republican Party because Republicans control the majority of state legislatures and have used this power to gerrymander legislative districts and to enact voter‑suppressive laws such as voter ID laws. With Justice Antonin Scalia’s unexpected passing during the administration of a Democratic president, the conservatives’ control of the Court has been put into play. While the media and presidential candidates have focused on the implications of a shifting Court majority for individual rights, it is likely that, behind the scenes, politicians are much more focused on the implications of a shifting majority for their ability to hold onto power.

Full article available here.




Too Heavy a Burden: Testing Complicity-Based Claims Under the Religious Freedom Restoration Act
VOLUME 92

Kaleb Brooks

This Note argues that courts ought to recognize, in the context of complicity-based claims under the Religious Freedom Restoration Act, a sound distinction between burdens on religious conduct, which enjoy protection, and burdens on mere religious sentiment.  In light of the structure of complicity-based claims, such a distinction between conduct and sentiment is the only sound approach that respects the Act’s requirements. The Note reaches this conclusion through a survey of the various complicity-based challenges to the Health and Human Services contraceptive care mandate for religious non-profit employers under the federal Religious Freedom Restoration Act in the period between Burwell v. Hobby Lobby and Zubik v. Burwell.

Full article available here.




Confirm Myra Selby for the Seventh Circuit
VOLUME 92

Carl Tobias

This Article canvasses Myra Selby’s dynamic professional record, the federal judicial selection process under President Obama, and the Seventh Circuit. It ascertains that Selby is an exceptionally competent, mainstream prospect and that the appellate court requires all of its members to deliver justice. However, Republican senators did not collaborate, particularly after they had captured a Senate majority—a circumstance that this presidential election year aggravates. The last section, therefore, proffers recommendations for Selby’s prompt Senate consideration and confirmation.

Full article available here.




“A Choice of Weapons”: The X-Men and the Metaphor for Approaches to Racial Equality
VOLUME 92

Gregory S. Parks and Matthew W. Hughey

The authors explore The X-Men comic as a metaphor for both racial discrimination in the United States and strategies for addressing such discrimination. In consideration of the recent rise in the shooting of people of color, particular African American men and women, at the hands of law enforcement officers, an increasingly vocal and aggrieved segment of the white populace in the form of the “alt right,” and a presidential candidate that both implicitly and explicitly deploys “law and order” and racist appeals for particular social and political changes, we appear to once again stand at an important crossroads in American history. In consideration of the social upheavals of the 1960s, these choices are, however, not new and have been well-detailed in graphic novels and comic books, such as The X-Men. These popular representations gesture toward an important question: Which approach (peace or violence) is best, particularly in light of the current struggle for racial equality in the United States? In Part I, the authors provide a basic analysis of how The X-Men deliver a metaphor for race, bias, and discrimination. In Part II, the authors parse the ideology and methods of Magneto, chief antagonist in the X-Men, as a metaphor for Malcolm X and the Black Power/Black Nationalist approach. In Part III, the authors parse the ideology and methods of Professor Xavier, chief protagonist in the X-Men, as a metaphor for Martin Luther King, Jr. and the civil rights movement approach. The authors conclude by speculating as to which approach would be best for African American advancement today.

Full article available here.




Picking Up the Slackline: Can the United States and Japan Successfully Regulate Commercial Fishing of Bluefin Tuna Following Failed Intergovernmental Attempts?
VOLUME 91

Sarah E. Bauer

Since the 1960s, international organizations have attempted to protect Bluefin from overfishing. For various reasons, however, these attempts at intergovernmental regulation have failed spectacularly, leading environmental groups to call on individual nations to take up the mantle. Due to their joint status as the world’s largest consumers of Bluefin tuna, the United States and Japan are potentially the two nations most able to save the species from extinction. To determine whether these countries can implement effective regulations to make up for a lack of intergovernmental success, however, multiple elements must be considered. First, the very nature of the respective countries’ markets and the regulatory bodies they have in place are factors in determining whether these countries are candidates for successful governmental regulation. Second, their governments’ historical stances on commercial fishing regulation, both for the Bluefin and for other species, are perhaps the best marker for whether proper regulation, enforcement, and compliance can be expected from the nations called on to prevent Bluefin overfishing.

Full article available here.




Indiana’s Texting-While-Driving Ban: Why Is It Not Working and How Could It Be Better?
VOLUME 91

Emma Gormley

In an attempt to respond to the serious danger of texting while driving, well-intentioned state legislatures across the country have enacted almost uniformly under-inclusive laws that do little to deter drivers from engaging in risky, distracting behavior. These laws leave police floundering to find ways to enforce them. For many drivers, the perceived benefits of texting or otherwise using a cell phone while driving are high, while the risks seem low. Indiana’s texting while driving ban for all drivers, first put in place in 2011, has gone largely unused by police in the years since its passing, with fewer than 400 tickets written as of mid-2014. State police attribute the low numbers mainly to the difficulty they have had in enforcing the law. As it stands today, Indiana’s texting while driving statute contains gaping loopholes, which leave drivers free to engage in risky behaviors with little fear of legal repercussions.

Full article available here.

 




Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations
VOLUME 91

Alfred L. Brophy

This Article offers an alternative to the much-discussed U.S. News & World Report rankings. Where U.S. News rankings are affected by a wide variety of factors some of which are criticized as irrelevant to what prospective students care about or should care aboutthis Article looks to three variables: the median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at nine months following graduation at full-time, permanent, JD-required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank-orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to those of the 147 schools analyzed in U.S. News & World Report in March 2014. It identifies the schools that improve and decline the most with the new ranking. This Article provides ranks for all 194 American Bar Association accredited law schools that U.S. News included in its rankings released in 2014, including the forty-seven schools that U.S. News put in its “unranked” category.

Full article available here.

 




Beyond Transparency: The Semantics of Rulemaking for an Open Internet
VOLUME 91

Reza Rajabiun

In trying to promote the development of an open Internet, the U.S. Federal Communications Commission (FCC) has primarily tried to encourage network providers to be transparent about their traffic management practices and quality of service prioritization policies. Dominant network operators have successfully challenged this minimalist approach to addressing end-user concerns about the rise of a two-tiered Internet, motivating the FCC to engage in yet another public consultation process to assess its future approach to the problem. This article maps the debate using Natural Language Processing (NLP) tools that allow us to build a systematic picture of the positions of the regulator and groups of private interests trying to shape its decisions. A quantitative linguistic analysis of the content of formal written submissions to the FCC by parties with divergent views helps document how the conceptual model of the regulator evolved during the rulemaking process leading to the FCC February 2015 network neutrality Order. Despite the adoption of a broader substantive basis by the FCC under Title II of the Communications Act, the rule-of-reason approach to substantive interpretation in the Order limits the capacity of the new regulatory framework to protect and promote an open Internet. The evidence suggests the public consultation process is likely to serve as a tool for legitimizing status quo institutional arrangements that allow operators to engage in discriminatory traffic prioritization strategies.

Full article available here.




Cook v. NARA Versus the Public’s Right to Know
VOLUME 91

Sarah Lamdan

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

This case note suggests that the Second Circuit tipped the balance too far in favor of privacy in Cook v. NARA by mistakenly (1) treating Bush and Cheney like ordinary academic scholars, (2) ignoring the open-government, transparency purposes of both the Presidential Records Act and the Freedom of Information Act, and (3) determining that PRA embargo periods are to provide former officials with unfettered access to their records.

Full article available here.




What Iron Pipefittings Can Teach Us About Public and Private Power in the Market
VOLUME 91

Sandeep Vaheesan

In this Article, the author examines the current debate on whether state and local regulations that impede emerging players (like Airbnb, Tesla, or Uber) serve the public interest. Vaheesan argues that this focus on government restraints implicitly discounts private efforts to create closed markets—whether it is, for example, by Amazon, Comcast, or Google. This Article goes on to demonstrate, through the example of a recent Federal Trade Commission decision on the monopolization of the domestic iron pipe fittings industry, that sometimes it is only through public intervention that competition can be maintained against private forces seeking to do away with it.

Full article available here.




Go Set a Watchman and Growing Up
VOLUME 91

Allen Mendenhall

The narratives of Jean Louise in To Kill a Mockingbird and Go Set a Watchman are as consistent as lived experience, which is marked by disruption and contingency, ambiguity and rupture, fragmentation and complexity. Only the careless would have accepted Jean Louise and Atticus as one-dimensional, self-contained figures unspoiled by the mores, customs, and vocabularies of their white discursive community. Such a sanitized view of Jean Louise and Atticus erases and rewrites rather than represents history in its disturbing, enlightening variety and complexity. Jean Louise and Atticus are not stock character types; their thoughts and behaviors are irreducible and inexhaustible.

Full article available here.




Harry Pratter’s Wisdom
VOLUME 91

Jonathan Pratter

From 1950 to 1994 Harry Pratter taught law at Indiana University-Bloomington. One of his favorite sayings (he had many of these) was Maitland’s “[T]aught law is tough law,” a phrase that a forty-four year teaching career entitles
you to utter with some frequency. In response to Sartre’s notorious challenge, “Do you have anything to say?” Pratter could certainly answer yes. He took Sartre literally. Pratter preferred to speak—that is to teach, and not to write. The source of Pratter’s strong preference for speech over writing must remain a mystery. The consequence is that a good deal of what he thought and said has not been preserved.

That’s a shame because Harry Pratter had something to say that was well worth hearing. The hope is that this essay will be able to convey something of the flavor and tenor of Harry Pratter’s thought.

Full article available here.




Solving the Puzzle of Transnational Class Actions
VOLUME 90

Kevin M. Clermont

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

Full article available here.




From the Seat of the Chair: An Insider’s Perspective on NCAA Student-Athlete Voices
VOLUME 90

Scott Krapf

This Article explains how student-athletes already have a significantly influential voice. The Author calls upon his personal experience as a former Division I student-athlete and Chair of the NCAA Division I National Student-Athlete Advisor Committee to show that student athletes are capable of effectuating change by expressing themselves through existing means, rather than unionization.

Full article available here.




Judicial Selection in Congress’ Lame Duck Session
VOLUME 90

Carl Tobias

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Full article available here.




Citizens Disunited: McCutcheon v. Federal Election Commission
VOLUME 90

Adam Lamparello

In McCutcheon v. Federal Election Commission, the Supreme Court invalidated aggregate limits on individual contributions to political candidates and committees. Despite the immediate public outcry, Chief Justice Roberts’ opinion was constitutionally defensible, just like Justice Kennedy’s opinion in Citizens United v. Federal Election Commission. The wealthy, like everyone else, are entitled to the full enjoyment of the Constitution’s express and penumbral guarantees.

The problem is that everyone else—including the poor and middle class—also have that right. As a practical matter, however, the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and on life support for the poor.

Full article available here.




Domestic Violence, Gun Possession, and the Importance of Context
VOLUME 90

Wesley M. Oliver

Federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. Within a few months of the twentieth anniversary of the enactment of the Violence Against Women Act, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts. This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake.

Justice Scalia correctly criticized the majority for creating inconsistent definitions of the same language in a single statute, something courts try to avoid. Viewed as a statutory interpretation case, Castleman’s reasoning is a stretch; viewed as an interpretation of a public welfare statute, Castleman is consistent with a long-standing principle of criminal law.

Full article available here.




Are Indiana’s Newly Expunged Convictions Still Available for Impeachment?
VOLUME 90

Graham Polando

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only a matter of time before their recipients will begin to testify. Despite its intent, the expungement legislation fails to completely erase the past: litigants seeking to attack the witness’s credibility may legitimately unearth an expunged conviction.

Full article available here.




Note: Legislating Labors of Love: Revisiting Commercial Surrogacy in New York
VOLUME 90

Deborah Machalow

In 1978, Louise Brown, the first baby conceived through in vitro fertilization (IVF) changed the world. Doctors first considered fertilization outside a woman’s body in 1934, and it has since become a medical mainstay. Since 1978, around five million children worldwide have been born through assisted reproductive technology. In IVF, eggs are retrieved from a woman’s ovaries and fertilized in a lab. The resulting embryos are transferred into the uterus of either the woman who produced the eggs or of another woman. This procedure has had drastic implications on the law of surrogacy contracts.

Full article available here.




Further Standing Lessons
VOLUME 89

Heather Elliott

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here).  In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Full article available here.

 




Justice Scalia’s Truthiness and the Virtues of Judicial Candor
VOLUME 89

Allen Rostron

Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. When I choose audio clips from the Court’s oral arguments to play in my constitutional law classes, I would like to offer a balanced sample of views from the left and right sides of the Court. But I cannot resist loading up on Scalia sound bites, because in almost every major case he serves up the sharpest questioning and most imaginative hypotheticals. His judicial opinions are also remarkably passionate and frank. If he thinks a lawyer’s or even a fellow Justice’s argument is nonsense, he will bluntly say so. He has received intense criticism for supposedly being “too political” in some of his opinions, such as his scorching dissent in last year’s case about Arizona laws aimed at illegal immigrants or his bitter denunciation of the Court’s last major ruling on the detention of suspected terrorists. But what purpose is really served by judges hiding their motivations behind a false veneer of detachment and stilted formalism?

Full article available here.