Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process. Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middle- ground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail. Broken records review looks at facts relied upon (in all likelihood) in bad faith; it is not concerned with bad faith itself. This leads to a number of descriptive and normative implications. First, legislative rationales falling outside of the factual realm, including purely moral justifications, would not be reachable by a broken records challenge. Moreover, while the “bite” of broken records scrutiny may lead some to raise the specter of Lochnerian judicial overreach, the inquiry is far more limited and would not lead to the invalidation of appropriate legislative policy choices. Indeed, the breadth of a broken records challenge would be limited to a review of whatever factual bases were actually employed to support a given piece of legislation. One appeal of broken records review is that it echoes a customary judicial determination grounded in fact: indeed, the reasonable-legislator standard bears a useful resemblance to the reasonable-juror standard routinely considered during summary judgment. And the roadmap for litigants to follow is clearer than what other scholars propose: groups seeking to invoke the Supreme Court’s countermajoritarian prerogative can focus on more objective criteria—either gross misrepresentations of the number of credible examples of the evil allegedly targeted or other evidence counter to the legislative narrative— instead of pushing for de novo review of legislative factfinding or divining the subjective impulses of legislatures to show animus. Far from an open-ended invitation for courts to undertake legislative factfinding, the process proposed by this Article would simply empower judges to scrutinize invidious legislation more carefully by addressing the structural defect of broken legislative records

Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process. Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middleground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail

Mircea Eliade : making sense of religion

This work argues that an interpretation of Eliade's thought as systematic, coherent, and finally rational is fully consistent with his writings. His thought is systematic in that the terms it utilises are inter-definable, although their relations are never explicitly clarified. Within this interpretation his thought is coherent and defensible. Particularly, it does not make unwarranted ontological assumptions but, through his a priori, taxonomic identification of the sacred with that which is apprehended as the real, defers to actual religious phenomena. That said, Eliade's method cannot be assimilated to phenomenology in any strict philosophical sense.The resultant understanding of religion is well-defined and eminently practical for the study and teaching of the varied religious beliefs of our contemporary world. It makes sense of religion in three ways; firstly it presents as coherent religious expressions of the human existential situation; secondly it seeks to increase the (recognition of) meaning, significance, and relevance of such expressions; and thirdly it attempts to provide direction (Fr. sens) for scholars of religion in our efforts to interpret the data of religious phenomena.Part one provides a concept-by-concept analysis of the terms of Eliade's understanding of religion, concluding with some observations on the implications of that understanding for the study of implicitly religious behaviour. Part two inspects and attempts to defend against the various criticisms which have been levelled against Eliade by other scholars in the field of the academic study of religion. It concludes with some observations on the significance of this interpretation for methodology in that study of a human phenomenon

Rethinking the distinctions between old and new media: Introduction

Recent approaches to media change have convincingly shown that distinctions between old and new media are inadequate to describe the complexity of present and past technological configurations. Yet, oldness and newness remain powerful ways to describe and understand media change, and continue to direct present-day perceptions and interactions with a wide range of technologies - from vinyl records to AI voice assistants such as Siri and Alexa. How can one refuse rigid definitions of old and new, while at the same time retaining the usefulness and pertinence of these concepts for the study and analysis of media change? This introduction to the special issue entitled “Rethinking the Distinctions between Old and New Media” aims to answers this question by taking up the notion of biography. We argue that the recurrence of oldness and newness as categories to describe media is strictly related to the fact that interactions with media are embedded within a biographical understanding of time, which refers both to the lifecourse of people or objects and to the narratives that are created and disseminated about them. Employing this approach entails considering the history of a medium against the history of the changing definitions that are attributed to it, and more broadly, to considering time not only as such but also against the narratives that makes it thinkable and understandable

Atheism and Agatheism in the Global Ethical Discourse: Reply to Millican and Thornhill-Miller

Peter Millican and Branden Thornhill-Miller have recently argued that contradictions between different religious belief systems, in conjunction with the host of defeaters based on empirical research concerning alleged sources of evidence for ‘perceived supernatural agency’, render all ‘first-order’, that is actual, religious traditions positively irrational, and a source of discord on a global scale. However, since the authors recognise that the ‘secularisation thesis’ appears to be incorrect, and that empirical research provides evidence that religious belief also has beneficial individual and social effects, they put forward a hypothesis of a ‘second-order religious belief ’, with Universalist overtones and thus free of intergroup conflict, and free of irrationality, since supported (solely) by the Fine-Tuning Argument. While granting most of their arguments based on empirical research and embracing the new paradigm of the atheism/religion debate implicit in their paper, I contend that Millican’s and Thornhill-Miller’s proposal is unlikely to appeal to religious believers, because it misconstrues the nature and grounds of religious belief. I suggest that their hypothesis may be refined by taking into account a view of axiologically grounded religious belief that I refer to as ‘agatheism’, since it identifies God or the Ultimate Reality with the ultimate good (to agathon)