Sunday, December 27, 2015

Political Correctness

A number of leading Republican candidates for President have decried "political correctness." Why?

In Defense of Hate Crimes Legislation

I explained the purpose and defended the validity of hate crimes legislation in a pair of posts that were published in 2009 in the Akron Law Cafe. Those posts are summarized and updated here.

Saturday, December 26, 2015

What Drives the Ideological Divide in the United States? Reason Versus Magical Thinking

Over the past fifty years the political parties have realigned demographically and ideologically. In general, conservative groups moved towards the Republican Party and liberals have become Democrats. For example, the Dixiecrats switched from the Democratic Party to the Republican Party and Evangelical Christians became politically active and joined the Republican Party; while conservationists and "good government" reformers abandoned the Republican Party for the Democratic Party. Conservative Democrats and liberal Republicans no longer exist in any numbers. Thus, today there is a sharp ideological divide between the parties, making it difficult to find common ground on issues such as climate change, health care policy, gun control, immigration, or same-sex marriage. But another difference has also arisen between the two dominant political parties in the United States: an epistomological one. Democrats, who in general seek to change the future, are increasingly drawn to science and economic analysis, while Republicans, who wish to preserve or return to what they value in the past, are more and more likely to depend upon various forms of magical thinking. Some examples follow.

Monday, December 21, 2015

The First Amendment Defense Act: State Action, Equal Protection, Freedom of Expression, and Establishment Clause Concerns

In the preceding post discussing the First Amendment Defense Act I analyzed the vague and overbroad language of the Act and how the Act fundamentally misunderstands the nature of "liberty." This post discusses how the proposed law fares under the State Action Doctrine, Equal Protection, Freedom of Expression, and the Establishment Clause.

First Amendment Defense Act: Protecting an Open-Ended "Right" to Discriminate Against Same-Sex Couples

The First Amendment Defense Act purports to prohibit discrimination. In fact it fosters and promotes discrimination against same-sex couples. Moreover, the proposed law is fatally vague, and as it result it would encourage and protect a broad range of discriminatory actions by businesses, universities, hospitals, and other institutions. Furthermore, although the Act purports to defend "liberty," the Act fundamentally misunderstands the true nature of liberty -- that no person is entitled to more liberty than he or she is willing to grant to every other person.

Thursday, December 10, 2015

Analysis of Little Sisters of the Poor v. Burwell

The Supreme Court is returning to the issue that it dealt with in the Hobby Lobby case -- whether the Religious Freedom Restoration Act (RFRA) gives an employer the right to refuse to provide health insurance coverage for contraceptive services. This is a difficult question because the Affordable Care Act gives employees the right to such coverage. In Hobby Lobby the Court was able to craft an accommodation that protected the rights of both employers and employees. In this case, a group of employers challenges that accommodation; they contend that the accommodation itself violates their rights to religious exercise under RFRA.