As someone who wishes to dedicate her career to writing about First Amendment issues, I cannot shy away from controversial topics. I manifest my own principles by entering important conversations many are afraid to have. If I am silenced by fear of others’ reactions, what hope is there for those not so enamored of free speech ideals? And so, it’s time to share my views about some of the corrosive, and some of the beneficial, ways that identity politics and a focus on privilege have affected our academic discourse.
If I had to select the two harms to which we, as a society, are currently most attuned, I would choose the serious harms caused by sexual violence and discrimination. Perhaps unsurprisingly, these are also the two areas where individuals are least concerned about direct infringements and chilling effects on free speech. I want to highlight some of the less-discussed ways in which our zeal to prevent sex crimes and bigotry has dramatic free speech consequences. I also want to begin to make the case for why we should care about these consequences, despite the magnitude of these harms.
This week, the Supreme Court ruled 8-0 that the Federal Employees Health Benefits Act (FEHBA) pre-empts state laws that prohibit insurance subrogation. The Court’s opinion in Coventry Health Care of Missouri v. Nevils tracks my analysis of the issue here. The Court considered FEHBA’s express pre-emption clause, which provides that the terms of contracts negotiated between the federal government and private health insurance companies override state law relating to health insurance coverage or benefits. This pre-emption clause, according to a unanimous Court, applies to state anti-subrogation laws.
Absent from participating in the decision, of course, was newly minted Justice Gorsuch, who may have taken issue with the way one aspect of the case was analyzed. The Court correctly analyzed the pre-emption issue based on unambiguous statutory text, thus deferring for another day consideration of how much deference is owed to the Office of Personnel Management’s regulations on point. However, the Court’s Supremacy Clause analysis elides an interesting problem and unnecessarily disparages legal formalism in a troubling way.
A public relations battle between Arturo Di Modica, the creator of Wall Street’s “Charging Bull” statue, and New York City Mayor Bill de Blasio highlights the difficulty of separating ideology from principled reasoning. This difficulty is also rearing its ugly head in legal academia, which skews more liberal than the already liberal-skewing legal profession.
To combat this problem, affecting everything from Supreme Court nominations to our polarizing society, we need to hold each other more accountable for acknowledging facts and arguments that don’t support our positions. We need to face the charging bull of our own senses of justice, which can destroy sound reasoning and viewpoint diversity.
Di Modica has threatened legal action against the city after a financial firm unveiled a new statue, Fearless Girl, which stands defiantly right across from the bull statue. Now, instead of optimistically honoring prosperity, Di Modica’s statue represents the villainous force of the patriarchy.
The powerful, new Netflix series, “13 Reasons Why” deserves praise for its important subject matter, its gripping narrative, and its unflinching look at historically taboo topics such as suicide, sexual assault, and bullying. Although the show’s ability to provoke discussions on these topics is a great virtue, the treatment of these topics veers into the dangerous. The show’s heavy-handed, cause-oriented approach saps the complexity from difficult issues. Worse, the show’s internal logic of blaming all involved for one person’s emotional responses collapses upon itself.
If taken seriously and extrapolated beyond Hannah and her experience, the philosophical approach of the show would lead to problems, from a First Amendment perspective and from a social ordering perspective. Here are thirteen reasons why.
Part Two: Is the Federal Employee Health Benefits Act Unambiguous?
This post continues a series on Coventry Health Care of Missouri v. Nevils, and Kobold v. Aetna Life Insurance, two cases involving whether state laws can prohibit subrogation in the insurance contracts of federal employees. Part One in the Series, which explains the concept of insurance subrogation and the basic legal issues, can be found here. This Part explores whether insurance subrogation is covered by the clear, unambiguous language of the Federal Employee Health Benefits Act.
This post is for everyone who enjoys close readings of statutory text. Buckle up!
The conflict between religious liberty and anti-discrimination values is public and dramatic. Many have strong, solidified opinions about how to resolve the conflict, and there isn’t an obvious way to balance or compromise the interests. Two of the most recent and most contentious iterations of this conflict – Masterpiece Cakeshop v. Colorado Civil Rights Commission and Mike Pence’s dining policy –demonstrate the tough questions facing both sides of this debate.
This may be my most controversial blog post yet. Next week, I will return to my Series on insurance subrogation and federal pre-emption so we can once again bask in a pure legal issue. For now, I detail how all of my (perhaps) wacky views collided in one extraordinary week, and why I wish we, as a culture, would embrace them more.
Yesterday, while sitting in a coffee shop, I received the following email.