All posts filed under: Law

The Folly of a Racialized Criminal Justice Reform Debate

In the wake of the 2014 shooting of Michael Brown and the subsequent upheavals in Ferguson, Missouri, a number of political pundits implored Americans to engage in a “national conversation about race,” particularly as it pertained to racial disparities in the criminal justice system. These exhortations were understandable. America has the highest rate of incarceration in the world and—in state prisons—blacks are incarcerated at five times the rate of whites. America has a well documented history of subjecting blacks to police brutality, and reform advocates will often claim that this racially motivated mistreatment persists today. Well intentioned activists seek to rectify this state of apparent racial injustice. However, almost four years after Ferguson, no federal legislation has been passed. While several states have enacted meaningful reforms, the system as a whole remains unaltered. What explains this failure? By all reasonable accounts, we have had the demanded ‘national conversation’ about race in the intervening years since Ferguson. Apparently, and perhaps predictably, that discussion has been unproductive. Race as a Distraction and Means of Alienation After high-profile incidents …

Portugal Poised to Write Gender Fluidity into Law

On 13 April 2018, the Portuguese parliament approved Bill 75/XIII, the ostensible aim of which is to protect the rights of transgender and intersex individuals. Looking at the details, however, it’s difficult to say if it was really created to advance the rights of these people, or if it was simply cobbled together on some sort of whim. Portugal’s last parliamentary elections were held in September 2015, and a coalition of PSD (Social-Democrat Party) and CDS-PP (Party of the Social-Democratic Center) won the most votes, but failed to secure an overall majority. This allowed the country’s leftist parties (PS – Socialist Party; PCP – Portuguese Communist Party; PEV – Green Party; and BE – Leftist Block) to form a coalition government led by PS. The PS government has to make regular concessions to these parties because it needs their votes to pass new legislation. In the case of this bill, that wasn’t really the case, since Bill 75/XIII was originally proposed by the government itself. However, later drafts included recommendations from their far-Left coalition partners …

Unpopular Speech and the Shaping of the First Amendment

American civil libertarians are justifiably proud of the broad set of rights that their country’s citizens enjoy, and the unique legal protections afforded to freedom of expression, in particular. A variety of judicial rulings throughout the twentieth century expanded the interpretation of the First Amendment to provide some of the widest speech protections in the Western world. Although exceptions exist for ‘obscenity’ and ‘fighting words,’ Americans may otherwise be as expressive or inflammatory as they please, so long as they do not espouse a direct incitement to imminent lawless action. However, rapid cultural shifts in recent years has prompted a greater willingness on university campuses to categorise and censor what is often referred to as ‘hate speech,’ which is muddying the lines around protected expression. Next year will be the 100th anniversary of one of the most famous cases in United States Supreme Court history, Schenck v. U.S., which, along with a lower court case two years earlier, Masses Publishing Company v. Patten, helped to formulate the modern interpretation of the First Amendment. In a …