The Jurisprudence of Mixed Motives

By Verstein, Andrew | The Yale Law Journal, March 2018 | Go to article overview

The Jurisprudence of Mixed Motives


Verstein, Andrew, The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION                                                  1108 I. MOTIVE AS WE FIND IT                                       1114      A. A Mixture of Motives Rules                            1114      B. A Confusion of Concepts                               1117 II. A DESCRIPTIVE VOCABULARY                                  1121      A. Components                                            1125      B. Widespread Rules                                      1134         l. Primary Motive                                     1134         2. But-For Motive                                     1137         3. Sole Motive                                        1139         4. Any Motive                                         1141 III. DESCRIBING MOTIVE STANDARDS   1143      A. Clarifying Existing Legal Standards: Two Challenging  1143         Contexts         1. Equal Protection                                   1144         2. Employment Discrimination                          1151              i. Material Motive                               1152             ii. Sufficient Motive                             1153            iii. Causal Motive                                 1154      B. There Are Only Four Widespread Standards              1159      C. Practicable Motive Analysis                           1161 CONCLUSION                                                    1164 APPENDIX A: FULL MOTIVE ARTICULATION                          1166 APPENDIX B: WIDESPREAD MOTIVE STANDARDS BY DOMAIN             1170 

INTRODUCTION

Legal results often turn on motive. Bosses are permitted to fire employees for absenteeism, but not because of racial animus. (1) School boards may constitutionally ban books if concerned about "educational suitability," but not "simply because they dislike the ideas contained in those books." (2) Money or property can be given tax-free if the giver "proceeds from a 'detached and disinterested generosity,'" but it is taxable income to the recipient if some sort of business advantage is sought. (3)

Yet human beings are complex, and our motivations are often mixed. (4) Introspection reveals that we often act for several conscious motives, not to mention the unconscious impulses we do not ourselves notice. (5) The complications grow geometrically when we seek the motives of an organization or group--like "Proctor Hospital," (6) "Congress," (7) or "the voters of California." (8)

While concern for motive is universal, the law's treatment of mixed motives is neither uniform nor well theorized. Consider again the examples from the first paragraph, but imagine that the boss, school board, or gift giver acted for both motives mentioned rather than just one. How would such a mixed motive defendant be judged? The boss would lose an employment discrimination suit (9) and the school board would win a constitutional challenge, (10) while the tax liabilities are unknowable on these facts. (11) A small turn of the kaleidoscope gives altogether different results: the boss would win despite her mixed motives if the discrimination were because of age or disability rather than race, (12) and the government board might lose if it were stacking electoral districts rather than library shelves. (13)

Is there any order here at all, or is the law of mixed motives as idiosyncratic, elusive, and complex as motivation itself? Why are we sometimes forgiven according to our noblest aspirations and other times condemned according to our darkest?

In part, the varied treatment of motives, from one legal question to another, is just the natural fruit of common-law rulemaking. As Walter Blum writes, "The fact is that some of our statutory rules that apparently classify on a state of mind basis do not indicate what magnitude of the relevant qualifying purpose is sufficient." (14) Our motives jurisprudence therefore springs from the minds of judges, and judges do not always agree. …

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