Philosophy professor Rachel Tuvel has had a bad few days.  Hypatia, a journal of feminist philosophy, published her article “In Defense of Transracialism.”  As the name suggests, her article considered whether transracial identity should be given the same status as transgender identity.  (My short, somewhat reflexive answer would be “No,” but this is a question philosophers should consider.)  Academics then unleashed the most heated, brutal criticism against her and her methods – calling her work “violence” for using phrases like “male genitalia” and deadnaming Caitlyn Jenner, who also alternatively refers to her former name.  Hypatia, which accepted the paper after anonymous peer review with several referees, ultimately apologized for the article and claimed it should never have been published.

Some academics have come to Tuvel’s defense.  Philosopher and law professor Brian Leiter claimed the open letter and Hypatia’s apology are defamation.  I would not go this far.  The statements against Tuvel were based on opinion and judgment that did not imply the existence of untrue, defamatory facts.  To stifle discourse by threatening a lawsuit would be to engage in even more extreme forms of censorship than the feminist philosophers trying to ruin Tuvel’s career.  I would, however, say that this event illustrates the crisis of blurred lines in feminist rhetoric (and in academic and political discourse more generally).

Continue reading “Blurred Lines and Feminist Rhetoric” →

Last week, Howard Dean joined the ignominious club of politicians who have tweeted something obviously wrong about our First Amendment rights.  Dean tweeted that “hate speech is not protected,” a statement that would be true if uttered in any other Western democracy.  However, America’s exceptionally robust free speech protections mean that there is no such category of speech as “hate speech” that does not receive First Amendment safeguards.  Speech derogatory of people of different races or religions, which is banned elsewhere, cannot be banned here.  I believe this is a good thing.  Often those countries use their hate speech laws to arrest and imprison people for pure political speech.

I wonder how Howard Dean, a past Presidential candidate and physician, could be so wrong about our rights.  First Amendment doctrine is complicated, but we do not do a good enough job of teaching the basics, let alone the nuances, of free speech.  Perhaps this is because we don’t want people to know their rights –then they might invoke them.  This blog series begins a small effort to dispel the worst First Amendment myths, as seen on Twitter.

Continue reading “The Worst First Amendment Myths on Twitter (Part One)” →

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.

Continue reading “The Positive and Negative Effects of Identity Politics and the “Privilege” Lens on 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.

Continue reading “Sex Offenders, Bigots, and the First Amendment” →

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.

Continue reading “The Court’s Cursory Supremacy Clause Analysis in Coventry Health Care” →

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.

Continue reading ““Charging Bull” versus “Fearless Girl,” and Ideological Diversity in Legal Academia” →

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.

Spoilers ahead:

Continue reading “13 Reasons Why the Netflix Series Has Some Dangerous Implications for Society” →

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!

Continue reading “Federal Pre-emption and Insurance Subrogation at SCOTUS (A Series)” →

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.

Continue reading “Masterpiece Cakeshop, the Pence Policy, and Hard Questions about Religious Liberty Versus Discrimination” →

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.

Continue reading “April Fool’s Day, the HLS Cafeteria, and the Misleading Rhetoric Surrounding the Repeal of Obama’s Privacy Regulations (my entire life comes together in one week)” →