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.
I have found the “Notorious RBG” phenomenon off-putting since its inception. Perhaps my reaction is due to the fact that Justice Ginsburg, while a brilliant and important figure on the Court, is one of the Justices for whom I have the most trouble separating her legal analysis from her political views. (Justice Alito is the other.) I believe the elevation of her status to legend further undermines rule of law values. Many in the public seem to adore mere soundbites from her opinions, or the base result of a given case. As one might expect, Justice Ginsburg is not notorious for her legal methodology or sound reasoning in a way that appears at all separate from her fans’ policy preferences or political worldviews independent of our actual laws or Constitutional rights.
The Notorious RBG meme also creates the concern that Justice Ginsburg will write opinions or cast votes to further endear her to the public, compromising the independence of a body that safeguards individual constitutional rights over majority sentiment. However, although Justice Ginsburg enjoys her status as Biggie Smalls’s sister, she did not create the meme. What strikes me as potentially worse – especially in an era of political polarization where the judiciary serves a critical role as the branch that represents clear-headed logic – is judges gaining notoriety and fandom through Twitter. Judges tweet publicly about cases decided by other courts, collect praise for their own opinions, and express their religious preferences (one state court justice’s pinned Tweet is “God Got Game”). Some judges even pride themselves on their prowess with the 140-character medium.
At first blush, none of this struck me as wise or instilled confidence in me of a judge’s impartiality (or professionalism). However, Tweeter Judge Dillard of the Court of Appeals of Georgia makes a good case that judges, as public servants, should demystify their role and connect with the public in order to serve rule of law values. He argues, in Duke Law’s Judicature, that because judges, whose duty is to follow the law, “are often called upon to make decisions that will almost certainly prove to be politically unpopular,” social media is a way for judges to demonstrate that they are “accessible to the people.”
Of course, judges have their own First Amendment rights, but are also bound by ethical rules restricting them from acting in ways that evince even the appearance of impropriety. In this post, I explore the rules and restrictions governing judges’ public expression, their free speech rights, and my own views about when they shouldn’t enter the sometimes ugly, self-affirming free-for-all that Twitter has become.
Health insurance policy is complicated. I know this, my Insurance Law students know this, and, I daresay, most of our politicians know this. Rushing to action – either in terms of quickly passing health insurance legislation or quickly passing judgment on one’s political opponents – is especially unwise in this area.
Strongarmed by President Trump, the House of Representatives has begun debate on the American Health Care Act, the Republican plan to repeal the Affordable Care Act. President Obama’s ACA has increased health insurance coverage for many, but at prices too high for others to afford. Although Republicans have a majority of both the House and the Senate, President Trump’s AHCA must balance more conservatives’ desire to eliminate ACA-style regulations that reduce competition in the insurance marketplace with moderates’ desire to keep certain provisions, like the requirement that insurers offer certain essential health benefits, intact. Essential health benefits mandates ensure that everyone has health insurance coverage for their basic needs and prevents insurers from creating policies that cover far less than consumers expect, but they drive up health insurance costs, undermine choice for those who want a more limited plan, and reduce competition among insurers.
Deciding how to fix what is an increasingly broken health care system (with health insurance coverage being only one facet of the problem), requires an examination of both broad principles and specific proposals. Below, I offer a little of both.