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Katie R. Eyer (Rutgers, The State University of New Jersey - Rutgers Law School) has posted As-Applied Equal Protection (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract: Do as-applied Equal Protection claims exist?...

Pundits say, there is a long road ahead. Reforming the rule of law, adhering to democratic principles, ensuring equal rights are just some of the pressing requirements.

Her work communicates the ongoing fight for equal rights in a country that can be described as a "gender-apartheid" state, despite the fact that a large number of its women are highly educated.

Six times voted as the best football player in the world and with a career spanning over 20 years, the Brazilian athlete Marta Vieira da Silva became a football legend and a fighter for equal rights

Walter Olson


The Supreme Court today decided Haaland v. Brackeen, a challenge to the Indian Child Welfare Act of 1978. It did not reach vital underlying Constitutional issues of equal protection and individual rights for children and families, and these remain to be resolved another day. Instead, the Court addressed important structural issues concerning the relationship between federal, state, and tribal governments. It interpreted the Constitution as giving robust powers to Congress to regulate Indian matters, while sharply limiting the underlying authority of state governments. It also found the doctrine of "commandeering" inapplicable to the facts here and denied some claims of standing. The 7–2 decision was written by Justice Amy Coney Barrett, with Justices Clarence Thomas and Sam Alito writing dissents and Justice Brett Kavanaugh a concurrence.
Future cases may frame more sharply than this one did such questions as whether children and parents who have never lived in tribal relations or in Indian country may nonetheless be subjected to tribal sovereignty and special custody presumptions because of blood descent alone. Cato raised some of these issues in its brief.
Everyone interested in these issues should read Justice Neil Gorsuch's eloquent concurrence, joined in part by Justices Sonia Sotomayor and Ketanji Brown Jackson, in which he lays out the grim history of government intervention in Indian family life to which ICWA was a reaction. It is a history in which agents of the state intervened to take children away from the only families they had ever known, very much against those families' will, to place them with complete strangers in pursuit of vague remedial goals. Some will see in this history above all an assault on Indian tribes as collective entities. Others — I am one — will be moved to horror above all by the flagrant violations of individual and family rights. We should take care not to repeat such violations in pursuit of new remedial objectives.

Amman, Jordan – A new nationwide public opinion poll in Jordan released by the International Republican Institute's (IRI) Center for Insights in Survey Research (CISR) shows a lack of certainty over equal application of the law, satisfaction with services, and belief that the government lacks accountability. The poll found that fifty-nine percent of Jordanians do not believe that everyone has equality under the law […]
The post IRI Jordan Poll Shows Uncertainty over Rights, Satisfaction with Services, Desire for Government Accountability appeared first on International Republican Institute.

Tina Tchen, CEO and President of TIME'S UP, didn't set out to become a champion for women's rights. But in 1978 she fell into a job in Springfield, Illinois, which happened to be at the center of the fight for the Equal Rights Amendment. Her involvement in the movement helped set the foundation for a long career in law and public service. Tchen joined David to talk about progressive politics, her time as chief of staff to First Lady Michelle Obama, how the Covid-19 pandemic has disproportionately impacted women, and how to make the most of this pivotal moment as the country faces a reckoning on race, sexism and treatment of essential workers.
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If fiscal conservatives in the Louisiana Legislature
bind themselves to using state dollars to boost educator salaries, they need to
do it the right way.

As the 2023 Regular Session hurtles to a close
next week, finally a majority consensus
has appeared around this pay hike of $2,000 per teacher and $1,000 per staff
included in the Minimum Foundation Program formula. The
Board of Elementary and Secondary Education must initiate the formula that goes
into effect only if the Legislature ratifies it; if not ratified unchanged, the
current formula is used.

BESE sent such a formula that has started its journey with Senate Education Committee approval. At present, the general
appropriations bill HB 1 doesn't
contain a line item for this, but instead allocates the $197.7 million total to
paying down unfunded accrued liabilities which would free up money for local
districts that could be used for raises. The increased flexibility is desirable
not only because it allows districts to set their own levels of raises but also
relieves state taxpayers of a one-size-fits-all obligation that may not be
sustainable with a deteriorating
revenue picture forecast for at least the next three fiscal years.

Unfortunately, legislative majorities may be turning
against the more prudent approach in their wanting to add yet another statewide
commitment to burden taxpayers, continuing a headlong rush towards throwing
money at school employers. Since 2019, legislators have granted raises totaling
$3,300 to teachers and $1,650 to support personnel each.

This approach only perpetuates a major impediment towards
improving Louisiana elementary and secondary education – deferral in linking
pay to performance. Only a little more than half of districts even supplement
state base pay and hardly any connect pay to performance; the state portion isn't
linked.

Granting across-the-board raises does little to
improve students' academic performance, research
reveals, contrary to much of the rhetoric that emanates from uncritical
backers of these. Additionally, it subverts the idea of the MFP to move closer
towards equal funding across richer and poorer districts.

So, if the goal is to use pay to enhance education
rather than throwing more money at a special interest, any raise must have
parameters attached that vary its size at an individual level according to student
performance (a combination of competence level and growth, components already calculated
at the educator level) and difficulty in boosting that (for example, proportion
of students eligible for free meals as a proxy for households without the
cultural and/or fiscal means to encourage learning). The formula already has
baked in related measures that would address improved student performance, a
differential compensation package based on local needs at a cost of $61
million.

Regrettably, language detailing the former
specifies across-the-board hikes, but BESE members have given notice they can
change that at the last minute. Fiscal conservatives must insist they do, or
else they must reject the resolution. The reverse goes with the differential
compensation; it must be in the resolution or face their rejection. Either case
means reversion to last year's formula, without additional funding. And, it all
must happen without busting the state's spending cap.

If legislators insist on the more reckless
approach to doling out raises – pay boosts which appear warranted to some
degree by spiraling inflation caused a debt-fueled spending binge by Washington
Democrats – by putting state taxpayers on the hook for money that may disappear
that would invite service cuts elsewhere and/or tax increases, they need to
take that risk in a way that actually promises improved education outcomes. BESE
should rewrite quickly a resolution that empowers it to distribute teacher pay
raises along performance criteria it will issue prior to Jun. 30, and anything
less than that legislative majorities must defeat.

While the precarious relationship with the People's Republic of China often dominates the Taiwan elections, another issue of equal importance has demanded further attention: the future of LGBTQIA+ rights in Taiwan.

The climate protection ruling of the German Federal Constitutional Court in Karlsruhe of 2021 is a historic decision. It is on a par with the Court's major landmark decisions such as Lüth, Elfes, or Brokdorf. It updates the fundamental value of equal freedom: Freedom includes future freedom and, as a right to intertemporal freedom, can demand a proportional distribution of freedom opportunities over time.

This week we revisit our December 2018 conversation with Bryan Stevenson: civil rights activist, lawyer, and founder of the Equal Justice Initiative, a non-profit organization that provides legal aid to prisoners lacking representation. He joins David to talk about his experience growing up in a segregated county in southern Delaware, what it will take to confront America's brutal legacy on race, his mission to provide legal aid to those disenfranchised by the U.S. criminal justice system, and more.
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In my previous blog, which you can find here, I investigated the economic rationale behind a Negative Income Tax (NIT) and a Universal Basic Income (UBI), arguing that the former exhibits greater effectiveness in combating poverty but might discourage individuals to work, while the latter incentives greater participation of low-income individuals in the labour market at the cost of a lower effectiveness in tackling poverty. However, this economic assessment is not the only lens through which these two policies can be analysed and usually fails to explain why right-wing parties tend to support a NIT while left-wing ones prefer an UBI. This political divide is mainly to be connected to the ethical – rather than the economic- differences of the two policies, with a NIT relying on a libertarian view of freedom and equality while the UBI arising from an egalitarian one.The first key aspect that distinguishes the ethical foundations of NIT and UBI relates to their perspectives on freedom. Examining freedom from a negative standpoint involves considering an individual free when they can carry out their actions without interference from others or groups (i.e., they are free from). Emphasising the concept of negative freedom is intrinsic to libertarian thinking, as it necessitates the establishment of minimal legal frameworks and a governing authority to safeguard individuals' self-determination. In contrast, from an egalitarian standpoint, an individual is deemed unfree if they lack the means necessary to pursue a goal and be autonomous, even if no other individual or institution obstructs their path. Positive freedoms can therefore be described as opportunities (i.e., they are free to), and their maximisation necessitates redistributive measures, which are ensured by a stronger and more active state.A second factor is individuals' approach to uncertainty. On one hand, the libertarian stance acknowledges that different individuals possess varying degrees of risk aversion when engaging in economic activities. This implies that individuals make choices regarding their employment status, investments, and consumption based on their unique risk preferences. In this view, the market system ensures equality of treatment among individuals. On the other hand, the egalitarian viewpoint perceives and justifies redistribution as a response to the widespread risk aversion exhibited by all individuals. This argument is rooted in the notion that, given individuals' lack of knowledge beyond moral considerations (referred to as the veil of ignorance), they would collectively support the existence of institutions dedicated to redistributing the products and benefits stemming from the arbitrary distribution of abilities and talents.Based on a libertarian view, a negative perception of freedom and a probabilistic approach to uncertainty would reject any form of equality beyond equal rights, thus opposing any form of compulsory fiscal imposition. However, assuming the necessity for the existence of such a policy, state intervention should be limited to preserving the essential tenets of libertarianism. Therefore, any public redistributive scheme should exclude any form of needs, the link with the market should be as weak as possible and the role of the state should be as less invasive as possible. In this context, a NIT scheme is often argued to be a redistributive policy that adheres to these constraints by implementing exemptions and deductions from taxable income and only taxing the portion that exceeds a certain threshold. On the other hand, a positive perception of freedom, which asserts that true freedom encompasses both the means and the rights to pursue one's desires, along with a risk-averse approach to uncertainty, leads to a policy that addresses people's needs with an unconditional requirement. This is exemplified by a UBI, which aims to meet individuals' purchasing power without imposing specific conditions.

David Boaz


Here we go again. Another "obituary" for libertarianism. While Salon Magazine declares that we all live in a "libertarian dystopia," and a new brand of big‐​government conservatives promise to free the Republican party and American government from their libertarian captivity, Barton Swaim declares in the Wall Street Journal that a new book "works as an obituary" for libertarianism. That's not a characterization that I think the authors—Matt Zwolinski and John Tomasi—would accept of their book, The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism.
Swaim notes that the book surveys many different kinds of self‐​styled libertarians over the past two centuries, and that the authors lay out six "markers" that libertarians share: property rights, individualism, free markets, skepticism of authority, negative liberties, and a belief that people are best left to order themselves spontaneously. Not a bad list, significantly overlapping with the list of seven key libertarian ideas that I laid out in the first chapter of my own book, The Libertarian Mind.
He goes on to argue, following the authors, "In the 21st century, the movement in the U.S. has consisted in an assortment of competing, often disputatious intellectual cadres: anarchists, anarcho‐​capitalists, paleo‐​libertarians (right‐​wing), 'liberaltarians' (left‐​wing) and many others." Somehow he leaves out actual libertarians, such as those who populate the Cato Institute, Reason magazine, the Objectivist world, and much of the Libertarian Party. Indeed, a few lines later he cites the "diversity" of "the priestess of capitalism Ayn Rand, the politician Rand Paul and the billionaire philanthropist Charles Koch"—none of whom would fall into any of the esoteric categories that he suggests make up modern libertarianism and in fact belong to actual libertarianism or its penumbras.
The whole review is ahistorical. Swaim never mentions classical liberalism, the revolutionary movement that challenged monarchs, autocrats, mercantilism, caste society, and established churches beginning in the 18th century. Liberalism soon swept the United States and Western Europe and ushered in what economic historian Deirdre McCloskey calls the "Great Enrichment," the unprecedented rise in living standards that has made us moderns some 3,000 percent richer than our ancestors of 1800. The ideas of the classical liberals, including John Locke, Adam Smith, and the American Founders, are those that animate modern libertarianism: equal rights, constitutional government, free markets, tolerance, the rule of law. Zwolinski and Tomasi say that "what sets libertarians apart is the absolutism and systematicity" with which we advocate those ideas. Well, yes, after 200 years of historical observation and philosophical and economic debate, many of us do believe that a firmer adherence to liberal/​libertarian ideas would serve society well. We observe that the closer a society comes to consistent tolerance, free markets, and the rule of law, the more it will achieve widespread peace, prosperity, and freedom.
Swaim insists that libertarians do not engage "with ultimate questions—questions about the good life, morality, religious meaning, human purpose and so on." He's wrong about that. Adam Smith wrote The Theory of Moral Sentiments. F. A. Hayek stressed the importance of morals and tradition. Ayn Rand set out a fairly strict code of personal ethics. Thomas Szasz's work challenged the reductionists and behaviorists with a commitment to the old ideas of good and bad, right and wrong, and responsibility for one's choices. Charles Murray emphasizes the value and indeed the necessity of community and responsibility. Libertarian philosophers of virtue ethics find the case for limited government to be based on the search for the good life. Swaim would be on more solid ground to say that libertarianism does not presume to tell individuals what to believe and how to live. Separation of church and state and all that. As I wrote in a letter to the Journal (not yet published), Swaim refers to the "studiously amoral philosophy of libertarianism." A popular summary of libertarianism, "don't hit other people, don't take their stuff, and keep your promises," is just the basic morality that allows human beings to live together in peace.
As for his claim that libertarianism is dead, that this book is an obituary, I refer Swaim again to all the people who complain that we're living in some sort of libertarian world. Libertarians often feel depressed; they believe the world is on "the road to serfdom." But in fact the world is far freer in this century than ever before in history. Free markets and free trade, an end to slavery and caste societies, representative government, and the rule of law now govern the Western world and much of the rest. Most of the Cato Institute's website comprises complaints about the malfeasance of the U.S. government. But in the bigger picture, libertarians have had much success. In the roughly 50 years since I started thinking about politics, one could point to such successes as:
the end of conscription in the United States
social, economic, and political equality for women
dramatically lower marginal tax rates
freer trade
deregulation of major industries such as airlines, trucking, communication, and finance
the almost total demise of communism
and the consequent discrediting of socialism and central planning
the reorientation of antitrust policy to a consumer welfare standard
expanded First Amendment protections
expanded Second Amendment protections
the progress of gay rights and gay marriage
growing opportunities for school choice
a slow erosion of the war on drugs
I could go on. None of these are total victories. No ideology achieves all of its sweeping vision, at least not without a military conquest of the government and the ability to rule by decree—and those experiments are nothing to emulate. In various parts of the world bad ideas are back—socialism, protectionism, ethnic nationalism, anti‐​Semitism, even industrial policy. The libertarian challenge is to join with other liberals—Reaganite conservatives, free‐​speech liberals, people who are "fiscally conservative and socially liberal"—to push back against these bad resurgent ideas. But this record of accomplishment is no obituary.

UK women aged 40 and older will not experience the closure of the gender pay gap until after they reach state pension age, according to a report by the Fawcett Society.The Equal Pay Day 2023 report, "Making flexible working the default", found that on average working women take home £574 a month less than men – or £6,888 a year.Blaming a lack of flexible working in well-paid, high-quality jobs, the report found that women were forced to put up with less fair and less equal working arrangements in exchange for the flexibility required to balance their caring responsibilities.Of course, this leaves us open to the charge of merely being misogynist brutes. Which we even could be. But let us cast this complaint in a different way. Same meaning, just different words. Those who decide to live their lives in different ways get different jobs which pay different amounts of money. There, we're sure we're all shocked this happens in a free, liberal and market economy. We're also entirely unsure about how this could ever not be so if we are to maintain that trinity of free, liberal and market.After all, it is not necessary that women shoulder those caring responsibilities. Such things as househusbands do exist. Paternity leave is a thing - and we're entirely happy to be identified as one of the sources for why it does. To be liberal is to insist that all should have choices. To be free is to have choices. A market economy is the only form that actually works with our species. That some exercise those choices, freedoms, in a manner that leads to a fuller but lower paid life is, well, it's just one of those things really. It's not just the difficulty of what we might do about it, it's the far more important question of why would we do anything at all? We centrally, politically that is. For of course a possible solution is that women sort this out for themselves. As, we very strongly suspect, they already have. If women only mated with those who did shoulder at least half of those caring responsibilities - or even all of them - then this problem of the unequal burden and outcome would not exist. That it does might lead to assumptions about expressed preferences.So ladies, the solution is in your well, hands isn't quite the right physique part but….

 A controversy broke out on social media this weekend: Taylor Lorenz interviewed the (or one of the) truly horrible people behind the far right Libs of Tiktok account.  It raised questions of whether one should platform the truly awful.  I have been thinking of platforming such for awhile  now, so I am using this as an opportunity to think through my stance (which is not at all based on a strong standing of the legalities of all of this).Let's start with the basics that people get so very confused about:No one is entitled to a platform, everyone is entitled to free speech.To be clear, when we talk about free speech, we need to be clear that the 1st amendment in the US (and probably the Charter of Rights and Freedoms in Canada) only restricts governments from restricting people's right to engage in free speech.  Clubs and, yes, businesses can restrict the speech of their members/employees in ways that the state cannot. Free speech does have some restrictions--the classic is you can't yell fire as a prank in a crowded theater as that is dangerous.  Inciting violence is also not so free, although your mileage may vary on what counts as incitement.  Is "Free Palestine" incitement? I don't think so.  Now, that whole platform is not the same thing as free speech thing. One is not obligated to give time/space/bandwidth/whatever to anyone (in ye olde days, US tv stations had to give equal time, and when it went away, that gave room for Fox and its ilk).  Universities, for example, don't have to provide stages and fora and audiences to far right speakers or even not so far right speakers.  Or far left ones. In an op-ed, I argued that the Conservative Party of Canada should not provide a prominent speaking position to a far-right retired general as that would politicize the Canadian armed forces.*  Of course, the supposedly cancelled retired general then used his perch at the National Post, a right wing newspaper, to argue that I was trying to deny him free speech.  Nope, I didn't say he couldn't rant in public, I was just arguing it was a bad idea for the CPC to amplify him.  He is entitled to say what he wants, he is not entitled to having his speech amplified.  There is a distinction here, and he is smart enough to get it, even if wants to play coy about how a dual citizen might dare to question him.So, the question is rarely whether to deny someone free expression (although when it comes to jury tampering or inciting violence, gag orders on the Trump family seem to be not only fair but wise), but rather who to platform and under what conditions.  Obviously, the starting point is the intention of the potential actor that might be platforming someone.  The example of the CPC: they wanted to attack the government and found a handy tool that might make it look like they presenting mainstream military views that contradict the government.  Yeah, tis bad faith bullshit, but they had that intent so they didn't care what the downstream effects will be on the military.The example of this weekend is a lot different: it is not just giving space for a hater to speak at length, but providing a critical interview where the interviewer pushes back and gets the hater to be revealed as shallow, incoherent, virulently racist and xenophobic.  To be honest, I haven't watched the entire thing because, well, yuck.  I am online enough (understatement) to know what Libs of Tiktok have been doing--inciting violence against Black Americans first and now LGBTQ+ folks. That the account deliberately names individuals so that its followers can then threaten those people.  Truly, truly awful.  But folks who are not so online may not be aware of this, so a WashPo reporter doing an extended interview with the source of all this hate is a good way to expose what's going on.  People can disagree about whether we need to hear from the source directly, but this is not platforming in the sense of giving someone a megaphone and letting them spread their views.  Recently, the governor of Oklahoma gave this far right white nationalist a position on the state's library advisory council.  That is giving someone a platform.  And then a non-binary kid gets killed, and the governor then acts all shocked.  Anyhow, sometimes these decisions are tricky because we want to expose awful people, but we don't want to provide awful people with greater audiences.  Folks might argue that we need the marketplace of ideas to sort this out, but like most markets and most invocations of the market metaphor, it really doesn't work like the metaphor. Ideas do not win or lose based on the quality of their debaters or the quality of the ideas themselves.  They win or lose based on what people do and who has the power.  That a far right white supremacist owns and controls twitter is a real problem that cannot be sorted out by everyone sharing their competing ideas online.  Musk is platforming far right racist and xenophobic stuff, and he is blocking stuff that is critical.  Suspending Navalny's wife a day or two after his death is a real tell.  Ultimately, journalists and organizations have to be prudent about who they give platforms and who they do not.  Again, no one is entitled to the front page or the editorial page or the university's biggest stage. Every decision to give someone a platform is just that a decision, which should be based on the benefits and the costs.  Academic freedom suggests giving space to a wide range of views, but there is no need to bring back that which has been thoroughly discredited--like flat earthers or those who buy into eugenic stuff or bell curves and IQ tests or antivaxxers.And, yes, we live in a time where Democracy is under threat. Which is a bigger danger: giving anti-democratic forces the megaphone or denying them platforms and then having those forces try to make those institutions feel bad for being hypocritical?  The bad faith actors want to use our values against ourselves.  It can be tricky about how to respond but respond we must.  So, that's my incoherent rambling on this topic.  You are required to read it, to respond, or to share it via social media.* I realize that folks can argue whether Maisonneuve is right wing or far right, but my coding rule these days if one uses "woke" disparagingly and essentially slurs those who are not cis straight folks, they are far right. If right wing folks want to say that is not fair, that those are mainstream views of the right, well, they are telling on themselves about where they are.