The Yale Law Journal

March 2018

The Jurisprudence of Mixed Motives

Labor and Employment LawAntidiscrimination Law

abstract. Legal results often turn on motive, and motive is often complex. How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article conducts a sweeping examination of motivations in the law, from equal protection and employment discrimination to insider trading and income taxation. It develops a precise descriptive vocabulary for categorizing the treatment of mixed motives in numerous areas of law. This framework yields several important insights. For example, nearly all domains of law pick among just four motive standards, and motive-based analysis is far more workable than commonly believed.

author. Associate Professor of Law, Wake Forest University School of Law; J.D., Yale Law School. For helpful comments on drafts, I thank Ian Ayres, Stephen Bainbridge, Maureen E. Brady, John Coyle, Elisabeth de Fontenay, Ofer Eldar, Russell Gold, Mike Green, Paul Gudel, Mark Hall, Martin Katz, Lynn LoPucki, Jon Michaels, Rebecca Morrow, Wendy Parker, Richard Primus, Gabriel Rauterberg, Alice Ristroph, Guy Struve, Mark Webber, Ron Wright, the participants at the UCLA School of Law Faculty Colloquium and the Wake Forest University School of Law Faculty Development Series, and Kevin Tobia and his editorial team at the Yale Law Journal. Anna-Bryce Flowe, Isaac Halverson, Andrew Homer, and James Lathrop provided excellent research help.