Sam A. Williams

The Jurisprudence of Sandwiches

 

I.              Introduction

In May of 2017, X (then known as Twitter) user @Mattomic posted “The Sandwich Alignment Chart,” seen here:

 

[1]

The chart offered a three-by-three grid of images with a horizontal axis going from Ingredient Purists who only allow traditional Anglo-American sandwich toppings (meat, cheese, lettuce, condiments, etc.) to Ingredient Neutral options that allow for a broader scope of savory ingredients (such as a hot dog or common burrito ingredients such as rice and beans) to Ingredient Rebels (allowing any food products between other food products). The chart’s vertical axis went from Structure Purists, which required two pieces of bread with toppings in between to Structure Neutral allowing a container on either side of the toppings, but not necessarily two separate pieces (such as a sub sandwich or a hot dog bun) to Structure Rebels who allow any food enveloped in any way by a containing food (such as a wrap or burrito).

The chart proved immediately divisive but has also emerged as a leading authority on the identification and classification of sandwiches (hereinafter the “Sandwich Question”). As @Mattomic said in another tweet, “The takeaway, 30-thousand notifications later: …everyone on Earth cares about sandwiches.”[2]

Official sources have weighed in on the issue, both clarifying points and introducing disagreement among primary authorities. Prior to the chart going viral, prominent dictionary Merriam Webster declared that a hot dog was a sandwich.[3] While Merriam Webster acknowledged the controversy, they noted that “given that the definition of sandwich is ‘two or more slices of bread or a split roll having a filling in between,” there is no sensible way around it.[4] When asked directly about their position on the chart, the dictionary’s social media team identified themselves as “structural neutral, ingredient rebel,” but disagreed with the chart’s example of the alignment (an Ice Cream Taco), arguing that a hard taco shell is not equivalent to a split roll.[5]

While this line of questioning may seem silly, there is a surprisingly robust legal debate surrounding the Sandwich Question that both pre- and post-dates the chart’s viral success. In a 2006 case, a court had to determine whether a burrito qualified as a sandwich to interpret a contract provision. This decision promoted significant discourse on the topic, with legal academics challenging the assumptions baked into the decision.[6] Prominent jurists, including multiple Supreme Court justices and prominent legal scholars, weighed in on the topic. Then in 2024, the Sandwich Question once again rose to prominence when an Indiana court once again wrestled the Sandwich Question.

This essay addresses the shocking gap in the literature about the Sandwich Question and the powerful insights that the question offers into legal reasoning. I begin, as more scholarship should, by canvasing academic inquiries into the nature of sandwiches. I then identify how this Sandwich Question fits into other longstanding legal debates, including the ongoing debate between legal formalism and realism, the role of the reasonable person, and distinguishing a judge’s politics from their jurisprudence. The immediate and enduring success of the Sandwich Question in the public consciousness demonstrates that recognizable legal analysis is not as foreign to the general public as the reputation of law school might suggest.[7] The fact that such widely known figures in the legal community have spoken in detail on the issue can help those new to legal reasoning break through their preconceived notions of which judges align with their views on a topic. The result is an issue that, while silly and possibly even cliché, offers a new perspective reexamining our relationship with the law.

II.           The Legal Discourse Surrounding Sandwiches

The meat of this essay lies in how legal answers to the Sandwich Question fit in existing arguments about the law. In this section I give a short explanation of seven different ways that prominent legal minds have addressed the Sandwich Question.

A.   Burritos Might Be Sandwiches

Although the question of what is and is not a sandwich goes back centuries,[8] I use the case of White City Shopping Center, LP v. PR Restaurants, LLC as the beginning of sandwich jurisprudence. In White City, a court had to determine whether a contract provision prohibiting the shopping center from leasing to businesses that sold sandwiches prohibited the center from leasing to businesses that sold tacos, burritos, and quesadillas.[9] The judge found that the contract provision did not prohibit the center from leasing space to Qdoba, noting that the contract provision did not provide a definition of sandwiches. The court instead relied on a definition of “sandwich” from Webster’s Third New International Dictionary defining a sandwich as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.”[10] Since tacos, burritos, and quesadillas typically consist of a single tortilla stuffed with a filling of meat, rice, and beans, the contract prohibiting the sale of sandwiches did not prohibit their sale here. The judge also noted that Panera had not offered any evidence that the parties intended to include burritos, tacos, and quesadillas as sandwiches, and that both parties were aware of nearby restaurants that sold items like those sold at Qdoba at time of contracting and chose not to mention them.[11]

a.        Scalia and Garner, Reading Law

The most prominent early voices to weigh in on the sandwich discourse were Supreme Court Justice Antonin Scalia and renowned legal author Bryan Garner. In Scalia and Garner’s book Reading Law, they cited the White City case as an example of Sir Frederick Pollock’s formula that a lawyer reads an authoritative legal text to discover a major premise, finds facts to discover a minor premise, then draws a conclusion based on those two premises.[12] Scalia and Garner identified the restaurant with more than the specified number of sandwiches as the condition that produced the legal consequence, or the major premise. Since the term “sandwich” was not defined, the court relied on a reputable dictionary to define the term. Since the fact that would produce a legal consequence was a store that sold items outside of that definition, “[t]he injunction was properly denied on grounds that no reasonable speaker of English would call a taco, a burrito, or a quesadilla a sandwich.”[13]

This argument posits White City Shopping Center as an exemplar of rule-based reasoning, the central legal concept that law consists of rules that can be applied to new sets of facts and answer legal questions.[14]

b.       Posner, Reflections on Judging

In a critical review of Reading Law, prominent Seventh Circuit jurist Richard Posner cited Scalia and Garner’s analysis of White City as an example of how “[o]mitting contrary evidence turns out to be Scalia and Garner’s favorite rhetorical device.”[15] He noted that while Scalia and Garner treat the dictionary reference as the entirety of the court’s decision, the court had used significant additional evidence, including the fact that Panera offered no evidence that they intended to exclude “sandwiches,” in order to reach its conclusion or attempted to clarify the point in any way.[16]

While Posner’s primary criticism was that the use of the dictionary in the case was neither dispositive nor helpful, he also noted that the court got the definition wrong. Posner pointed to multiple examples that challenged the court’s definition by either having more than two slices of bread (a club sandwich) or fewer (an open-faced sandwich). Neither the bread nor the layer between them needs to be thin. Posner waded into even more controversial waters by noting that a hamburger and a hot dog are regarded as sandwiches, and that “some people” treat tacos and burritos as sandwiches, noting that a quesadilla is even more sandwich-like.[17]

c.        The Hirsch Report

Posner’s very public dispute with Scalia and Garner gained an additional layer when Garner retained attorney Steven A. Hirsch to analyze the validity of Posner’s criticisms.[18] Hirsch’s main criticism was that Posner rejected the court’s answer to the Sandwich Question without offering an answer of his own.[19] Hirsch also contended that burritos, tacos, and quesadillas are distinct from sandwiches since they were made on tortillas, not bread, because tortillas are both not sliced from a larger loaf and are made of ground meal pounded flat, unlike bread. “[Tortillas] are about as much like sandwich bread as matzo crackers are.”[20]

Hirsch also mocked Posner’s examples of other foods typically or occasionally regarded as sandwiches by imitating a hypothetical conversation and then asking who would consider that question normal. Posner’s greatest problem, according to the Report, is a refusal to adopt to its own affirmative definition of what a sandwich is. “[T]he dictionary definition of ‘sandwich’ more closely accords with what most real people- as opposed to his imaginary ‘some people’ regard a sandwich to be.”[21]

B.   Hot Dogs Are Sandwiches

Prominent jurists have chewed on a different would-be sandwich thanks to a pair of interviews with late night comedian Stephen Colbert. In 2018, Colbert interviewed Supreme Court Justices Ruth Bader Ginsburg and Sonia Sotomayor about the contentious topic of whether a hot dog was a sandwich. While both justices came to the same conclusion that it was, they did so in different ways that demonstrate noteworthy distinctions even among allegedly ideologically aligned legal minds.

a.     Ginsburg

Colbert’s first relevant interview was with Supreme Court Justice Ruth Bader Ginsburg in March of 2018.[22] Colbert asked Ginsburg whether a hot dog is a sandwich. Ginsburg began her analysis by asking Colbert for his definition of the term. Colbert provided the definition that a sandwich is “two pieces of bread with almost any type of filling in between- as long it’s not more bread.”[23] Ginsburg further asked if that definition included a roll that had been cut open but not completely. Colbert responded that that was the core question, and then pointed out that a sub is a sandwich. Ginsburg proceeded to inform Colbert that under his definition of the term, a hot dog was a sandwich.

b.    Sotomayor

Colbert asked the same question of Ginsburg’s fellow Supreme Court Justice Sonia Sotomayor in November of 2018.[24] Sotomayor immediately pointed out that the question was unfair, since she had already seen Ginsburg’s interview, but offered to analyze the problem in a different way than Ginsburg did. Sotomayor provided her own definition of a sandwich- “something between two parts of a bread, or two slices of a bread.” Under that definition, a hot dog can be a sandwich, because the connectedness of the breads is irrelevant so long as there are two parts or slices.

C.   A Second Case: Burritos Are “Mexican-Style” Sandwiches

In May of 2024, the Sandwich Question once again found its way into the courtroom in Quintana v. Fort Wayne Plan Commission. The court had to determine whether zoning restrictions in a Written Commitment prohibiting fast food restaurants generally but permitting “[a] sandwich bar-style restaurant whose primary business is to sell ‘made-to-order’ or ‘subway-style’ sandwiches (which… includes, but is not limited to, ‘Subway’ or ‘Jimmy John’s’, but expressly excludes traditional fast-food restaurants such as ‘McDonalds’, ‘Arbys’ and Wendys,’” prohibited a taco restaurant from operating within a commercial property.[25] The court came to the conclusion that “tacos and burritos are Mexican-style sandwiches,” noting that the agreement would also permit gyros, naan wraps, or banh mi as presumably Greek, Indian, or Vietnamese-style sandwiches.[26]

III.        Lessons from the Sandwich

These clean rules producing counterintuitive (and likely controversial) results introduce several important concepts when understanding the law more generally. In this section, I address how the Sandwich Question implicates the nuance of several legal concepts.

A.   Formalism v. Realism

The White City decision, and Scalia and Garner’s praise for it, exemplifies a rule-based answer to the Sandwich Question. The court begins with a foundational rule, the definition of a sandwich, then applies that rule to a new set of facts to make the conclusion that a food is or is not a sandwich. This sort of rule-based reasoning is a clear example of legal formalism, or “the use of deductive logic to derive the outcome of a legal problem from premises accepted as authoritative.[27]

A formalist approach alone does not dictate a legal mind’s answer to the Sandwich Question. The second definition of a “sandwich” in Webster’s Third New International dictionary (the source the White City court used) states that a sandwich is “food consisting of a filling placed upon one slice or between two or more slices of a variety of bread…”[28] This definition unquestionably accepts a broader definition of bread and included ingredients than the definition adopted by the court and arguably includes (edible) envelopes such as burritos and tacos.

If litigants used this second definition, a tortilla would have to count as a variety of bread for a burrito to count as a sandwich. This dispute is as hotly contested as the Sandwich Question. Hirsch argues that the completely different approach to making bread and tortilla distinguishes bread from tortillas. While these production-based arguments between tortillas and bread are compelling, they are not dispositive. In Sabritas v. U.S. the United States Court of International Trade noted that “tortillas are unquestionably commonly and commercially accepted as bread in the United States.”[29]

The Quintana decision and Posner’s argument present an analogical answer to the Sandwich Question. Where rule-based reasoning creates the rules that govern all parties to ensure that all litigants are treated the same, analogical reasoning looks backwards to see how the court treated prior litigants in order to ensure that current litigants are treated the same.[30] While Posner does not discuss prior litigants, he notes several things that are considered sandwiches to challenge the rule (the definition of sandwich) adopted by the court. He does this without presenting any contrary rule of his own, eschewing a top-down approach where a rule dictates a conclusion and instead adopting a bottom-up approach where any rule is divined and refined through several examples of things that are sandwiches. This parallels the zoning restrictions in Quintana, which opt not to define “sandwich” but to give several examples of cases that would (Subway, Jimmy John’s) or would not (McDonald’s, Arbys, Wendys) qualify as sandwiches and leaves it to interpretation which set of examples a case comes closest to.

Posner’s approach to the Sandwich Question aligns with a legal realist approach to the issue. Legal realists argue that “law is based not on formal rules or principles but instead on judicial decisions deriving from social interests and public policy as conceived by individual judges.”[31] The realists challenge formalist reliance on rules by noting that many rules are too vague to determine the outcome, that in the absence of clear guidance courts had to refer to other authorities for guidance, and that formalism provided window-dressing for decisions reached on some unspoken grounds.[32]

Posner’s critique that the White City court adopted a contentious answer to the Sandwich Question without any explanation speaks to the first two realist points. Posner’s argument that other factual information provided by the court, including the absence of evidence of intent to include burritos in the term sandwich and that the plaintiff would have had to provided its own special definition if it wanted one since it drafted the contract knowing of nearby Mexican-style restaurants at time of contracting, indicates legal principles at work beyond the Sandwich Question.[33] Even if the definition explanation of the case is the correct one, the definition chosen reflects conclusion-based reasoning on the judge’s part that invites complex issues like racial bias.[34]

            The Quintana decision demonstrates similar realist concerns. The court was faced with a decision between reading a zoning restriction broadly (to only permit Jimmy Johns or Subway style restaurants) or narrowly (to exclude less healthy fast-food options like the ones that the restriction specifically names but allow certain brands of fast-service restaurant). While there might be a general definition of “sandwich” explaining this conclusion, an interpretation towards greater freedom and equity seems a credible explanation.

Hirsch’s primary rebuttal to Posner, that Posner failed to provide his own definition of a sandwich, follows an empirical claim of Posner’s with no evidence (who are these people who believe that burritos are sandwiches?) with an empirical one from Hirsch (that dictionaries present what “most people” believe something more than a hypothetical “some people”). While this point is primarily an unresolvable conflict of intuitions, it is worth noting that events like the controversy when Merriam Webster declared a hot dog a sandwich, or surrounding the sandwich alignment chart, challenge the notion that the definition a dictionary provides demonstrates what “most people” believe a word means.

B.   Sandwiches and the Reasonable Person

The analysis above speaks to some problems with trying to enforce a concrete definition on a term that is frequently used casually. When discussing the Sandwich Question with a person who was not legally educated, their proposal was to imagine what a five-year-old child would identify as a sandwich. This quasi-empirical question with a non-empirical answer resembles the points raised by both Posner and Hirsch about what “most” or “some” people believe and in Hirsch’s imagined conversation about a patron ordering a burrito at a sandwich shop. These notions loosely resemble another fixture of legal thought- the fiction of the reasonable person.

While the reasonable person is a character of Torts law used to identify whether someone acted with negligence[35], the notion of reasonableness can be found throughout the law in legal characters such as the hypothetical reasonable jury that helps the court determine whether summary judgment is appropriate[36] or the reasonable audience that guides whether copyright infringement occurred.[37] While the specifics of these tests may vary, they typically reflect “…a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’ interests.”[38]

While the reasonable person standard is objective, not all people are expected to conform to the same standard. A child is typically held to the standard of a similarly aged child, not the standard of an adult.[39] My associate’s test inverts this, suggesting that the reasonableness of whether something is a sandwich demands the straightforward intuition of a child’s mind rather than the nuances of an adult’s.

Reasonableness can also be affected by external circumstances. The emergency doctrine commands that courts treat conduct that might be unreasonable in most circumstances as potentially reasonable under other circumstances.[40] While one might wonder what exigent circumstances could change what a sandwich is, one student asked me “is it possible for a person to be reasonable if they are hangry?” [41] For another example, if someone opted not to eat sandwiches as part of a diet, would their definition of sandwich change as they got hungrier?

There may also be a regional component to reasonableness in the Sandwich Question. In White City, the Massachusetts court noted the shopping center’s unremarked upon proximity to burritos when drafting the contract. In Quintana, the court based its approach on an implicit American-style sandwich to determine what was and was not prohibited. The history of the sandwich roots the discourse in English nobility that may prove particularly controlling in European cultures or eastern states originally formed as English colonies. Wraps, arguably the missing link between a burrito and a sandwich, seemingly originated in California, where the line between an English sandwich and a Mexican burrito blurred thanks to the mixing of European and Mexican culture.[42] It makes intuitive sense that the United States Court of International Trade, which resolves litigation from countries around the world, would adopt a less culturally specific definition of “bread” than a trial-level state court. This is comparable to the role of community customs in determining liability. While such customs might not be dispositive, they can still help to inform the court’s analysis of a conduct’s (or a definition’s) reasonableness.

This regional component also points to the role of race in the reasonable person’s answer to the Sandwich Question. Scholars have criticized the reasonable person as reflecting “the would-be behavior of a theoretical… white, adult male.”[43] Would a white person’s answer to the Sandwich Question be the same as that of someone from a different racial background? This is not merely an abstract thought exercise. Critics have argued for racial and gender consideration in the reasonableness analysis on vital issues such as criminal procedure or workplace discrimination. [44] By confronting these everyday disputes over the Sandwich Question, we may accustom ourselves to question these assumptions in other legal circumstances.

The sandwich debate offers numerous avenues to explore the nuances of a tricky legal fiction. But can the debate help to not only introduce new concepts, but to break apart some of the baggage that legal minds carry with them from the outside world?

C.   Breaking politics and jurisprudence

One of the most interesting features of the legal sandwich discourse is that it offers one way for the law to break through traditional politics.

First, it helps people realize that their own thought process might align more closely with judges that they are predisposed to disagree with. Anecdotally, I can confirm that many people who identify as politically liberal align with Justice Scalia more closely on the Sandwich Question than they do with Justice Ginsburg. By identifying recurring patterns of thought in contexts that do not matter, it becomes easier to understand those patterns in contexts that do.

Second, it demonstrates the differences in jurisprudence among nominally politically aligned forces. Scalia and Posner were both appointed by Republican judges and are generally considered conservative thought leaders.[45] Ginsburg and Sotomayor are generally considered liberal justices, but their different approaches to the Sandwich Question mirror one of the key differences in their legal reasoning.

In her interview, Ginsburg relied on the rules of the game that Colbert established. Ginsburg accepted Colbert’s definition, which made some massive assumptions that made her conclusion inevitable. First, Colbert’s definition marks him as something of an ingredient rebel, since “almost any type of filling” is acceptable under his definition. Second, he states the conclusion that a sub is a sandwich rather than ask the follow-up question of if it would be one. According to the sandwich alignment chart, this is far from an obvious conclusion, since the difference between two pieces of bread and a split roll is a major dividing line between structure purists and neutralists. While Ginsburg may well personally believe that a hot dog is a sandwich, there are more minds than hers at work in her ruling here.

Ginsburg’s analysis closely aligns with the court’s analysis in Quintana in three ways. First, as noted above the court relied on the analogical reasoning invited by the restrictive language rather than any general definition of a “sandwich.” Second, the examples themselves suggested a narrow prohibition, with the examples of both prohibited and permitted foods falling firmly in the structure and ingredient purist camps. A narrow answer to the sandwich question would make the restriction excessively broad. Third, the court gave equal, if not greater, weight to the characteristics of the restaurant than they did of the food. While the line between food and restaurant can be a messy one, both played a major role in what the restrictions were designed to prohibit.

This analysis lines up surprisingly clearly with Ginsburg’s jurisprudence as a left-of-center institutionalist who might be willing to follow novel or counter-intuitive readings of the law, but that will play within existing or traditional boundaries. In her confirmation hearings, then-senator Joe Biden challenged Ginsburg on the role of the Court in leading society on certain issues.[46] This trend is particularly clear in her jurisprudence on criminal law issues, where she would sometimes sign on to the opinions of her conservative colleagues rather than the dissents of left-leaning-judges.[47]

While the difference between Sotomayor’s approach to the Sandwich Question and Ginsburg’s may be subtle- the definitions of “sandwich” that Colbert and Sotomayor provided are broadly similar and they produce the same outcome- the fact that Sotomayor provided the explanation that she used to make her ruling has some parallels within her jurisprudence. For example, in Sotomayor’s dissent in Utah v. Strieff, she cited numerous authorities other than caselaw (including the Department of Justice’s report on policing in Ferguson and W.E.B. DuBois, James Baldwin, and Ta-Nehisi Coates) as authority for her position.[48] A willingness like Sotomayor’s to locate authority outside of traditional legal texts might help the law to break free of the cultural biases that concepts like stare decisis require the court to reinforce.[49]

Whatever one makes of any legal scholars’ thoughts on the Sandwich Question, this diversity of thought indicates that simply bothering to ask the question can help refine our own reasoning abilities and understand the reasoning of others within our profession.

IV.    Conclusion

The Sandwich Question is one that the entire world (or at least the internet) seems to care about. With trust in the legal profession at an all-time low, why waste an opportunity to break down the wall between legal thought and society generally by applying our own unique lens to the thought experiment? Like a sandwich, legal reasoning can take many forms and contain many layers. Perhaps it is a perfect time to share them.

 

__________________________________________

 

Sam A. Williams is a Reference and Instruction Librarian and Assistant Professor of Law, University of Idaho College of Law.

 

[1] @mattomic, The Sandwich Alignment Chart, Twitter (May 1, 2017), https://twitter.com/matttomic/status/859117370455060481

[2] @mattomic, Twitter (May 2, 2017), https://twitter.com/matttomic/status/859385746020597762.

[3] Ashley May, Are hot dogs sandwiches? Merriam-Webster says yes, USA Today (May 31, 2016) https://www.usatoday.com/story/news/nation-now/2016/05/31/hot-dogs-sandwiches-merriam-webster-says-yes/85186082/

[4] Sandwich History: 10 Words You Can Chew On, Merriam-Webster (https://www.merriam-webster.com/wordplay/to-chew-on-10-kinds-of-sandwiches (May 27, 2016).

[5] @MerriamWebster, Twitter (May 1, 2017) https://twitter.com/MerriamWebster/status/859129586310950912

[6] See, e.g., Marjorie Florestal, Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 Mich. J. Race & L. 1 (2008); Larry A. DiMatteo & Blake D. Morant, Contract in Context and Contract as Context, 45 Wake Forest L. Rev. 549 (2010).

[7] See John M. Conley, Can You Talk Like a Lawyer and Still Think Like a Human Being? Mertz’s The Language of Law School, 34 Law & Soc. Inquiry 983 (2009) (reviewing Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer” (2007)).

[8] While various combinations of breads and fillings have existed for centuries around the world, the term “Sandwich” comes from John Montagu, the Earl of Sandwich, who ordered beef between two slices of bread. See Sandwich celebrates 250^th anniversary of the sandwich, BBC News (May 12, 2012) https://www.bbc.com/news/uk-england-kent-18010424).

[9] White City Shopping Ctr., LP v. PR Rests., LLC, No. 2006196313, 2006 WL 3292641 (Mass. Super. Ct. Oct. 31, 2006).

[10] Webster’s Third New International Dictionary 2011 (Philip Babcock Gore et al. eds., 1986).

[11] White City Shopping Ctr., LP v. PR Rests., LLC, No. 2006196313, 2006 WL 3292641 (Mass. Super. Ct. Oct. 31, 2006).

[12] Garner & Scalia, supra note 10, at 54 (citing Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law (1896)).

[13] Garner & Scalia, supra note 10, at 55.

[14] Susan A. McMahon, What We Teach When We Teach Legal Analysis, 107 Minn. L. Rev. (2023).

[15] Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (August 23, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism. (Posner later included a lightly edited version of this argument in a book. Richard A. Posner, Reflections on Judging 199-200 (2013).

[16] Id.

[17] Id.

[18] Steven A. Hirsch, The Hirsch Report, 4 J. L. 2777 (2014).

[19] Id. At 281-282.

[20] Id. At 282.

[21] Hirsch, supra note 20, at 283.

[22] The Late Show with Stephen Colbert, Stephen Works Out With Ruth Bader Ginsburg, YouTube (March 21, 2018).

[23] Id. Multiple readers criticized this definition for excluding toast sandwiches, or a thin slice of toasted bread between two untoasted pieces. See Isabella Beeton, The Book of Household Management (1861) (Available online at https://www.gutenberg.org/cache/epub/10136/pg10136-images.html#id10241). This definition may also exclude club sandwiches, as an additional piece of bread is one of several ingredients between two other slices of bread.

[24] The Late Show with Stephen Colbert, Justice Sonia Sotomayor Allows Stephen to Approach the Bench, YouTube (Nov. 17, 2018).

[25] Quintana v. Fort Wayne Plan Commission, No. 02D02-2212-PL-414 (D. Ind. 2024) (order regarding verified petition for judicial review).

[26] Id. at 10

[27] Legal Formalism, Black’s Law Dictionary (11^th ed., Thomson Reuters 2019).

[28] Webster’s Third New International Dictionary 2011 (Philip Babcock Gore et al. eds., 1986).

[29] 998 F. Supp. 1123, 1128 (1998).

[30] McMahon, supra note 16, at 2521.

[31] Legal Realism, Black’s Law Dictionary (11^th ed., Thomson Reuters 2019).

[32] Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 470 (1988).

[33] Posner, supra note 17.

[34] See, e.g., Florestal, supra note 8.

[35] Reasonable Person, Black’s Law Dictionary, (11^th ed., Thomson Reuters 2019).

[36] Scott v. Harris, 550 US 372 (2007).

[37] Audience Test, Black’s Law Dictionary, (11^th ed., Thomson Reuters 2019).

[38] Reasonable Person, supra note 36.

[39] See, e.g., Roberts v. Ring, 173 N.W. 437) (Minn. Sup. Ct. 1919).

[40] Emergency Doctrine, Black’s Law Dictionary, (11^th ed., Thomson Reuters 2019).

[41] A person is “hangry” when they are “[i]rritable or angry because of hunger.” Hangry, Merriam-Webster Online, https://www.merriam-webster.com/dictionary/bias (last visited Apr. 9, 2024).

[42] Becky Mercouri, Wraps, in The Oxford Companion to American Food and Drink, (Andrew F. Smith  ed., 2007).

[43] Jesse-Justin Cuevas & Tonja Jacobi, The Hidden Psychology of Constitutional Criminal Procedure, 37 Cardozo L. Rev. 2161, 2192 (2015).

[44] For scholarship addressing the reasonable person in criminal procedure, see, e.g,. Aliza Hochman Bloom, Objective Enough: Race Is Relevant to the Reasonable Person in Criminal Procedure, 19 Stan. J. Civ. Rts. & Civ. Liberties 1 (2023). For scholarship addressing the reasonable person in workplace discrimination, see, e.g, Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, 25 Employee Rgs. & Emp. Pol’y J. 13 (2021).

[45] Posner’s reputation may be more that of an iconoclast than a conservative, especially since (by his own admission) the 2008 financial crisis. See Richard A. Posner, A failure of Capitalism: The Crisis of ’08 and the Descent into Depression (2009). I argue that his storied career offers more than enough fodder to warrant an at least moderately conservative identity. However, even if the reader disagrees with this characterization, the difference between Scalia and Posner could serve as the difference between conservative and liberal legal thought.

[46] The Hon. Edwin Meese III, The Ginsburg Rule, Heritage Found. (July 27, 2005), https://www.heritage.org/courts/commentary/the-ginsburg-rule.

[47] See, e.g., Samson v. California, 547 U.S. 843 (2006).

[48] Utah v. Strieff, 579 U.S. 232, 250, 254 (2016) (Sotomayor, J., dissenting).

[49] McMahon, supra note 16, at 2553.