Faculty Bibliography

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious — and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the many disparate-treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of Title VII—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.

If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made.

Acts of discrimination are often criticized on the ground that they fail to "treat people as individuals." This paper develops an account of that moral requirement rooted in the philosophical literature on autonomy. To treat people as individuals, it argues, is not to eschew inductive generalization but rather to exhibit recognition respect for a particular morally salient property that persons possess. The paper explores just what that property of being "an individual" amounts to, and just how certain forms of discriminatory conduct may fail to respect it. The paper thus aims both to clarify an important strand in the moral case against certain forms of discrimination and, in so doing, to surface some neglected dimensions of what it means to respect the autonomy of others.

In September 2012, the government-chartered body responsible for allocating cadaveric organs in the United States proposed a plan to make better use of the scarce supply of kidneys through "longevity matching." Critics have charged the plan with age discrimination, since it will deliberately allocate high-quality kidneys to younger candidates at the expense of older candidates with equal or greater medical need. These allegations raise significant legal and moral questions, and the debate they have sparked offers a revealing vantage point on the ways discrimination is conceptualized within and outside the law. This paper offers the first analysis of the legality of the proposal under the Age Discrimination Act of 1975, which bars age discrimination in federally funded programs. It then argues that the statute fails to speak to the central moral concerns about the plan, which have less to do with instrumental irrationality or arbitrariness than with the potential for discriminatory rationing to denigrate the equal worth of older people.

The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying attention to such "majoritarian filibusters," this Note aims to disrupt the terms of the traditional debate and open up a new space for potential compromise. This Note reports the first empirical study of the majoritarian or countermajoritarian character of recent filibusters. These data reveal that, in half of the Congresses over the past two decades, successful filibustering minorities usually represented more people than the majorities they defeated. The choice whether to preserve the filibuster therefore cannot be reduced to a simple choice between majority rule and minority rights. After exploring the distribution of majoritarian and countermajoritarian filibusters along other dimensions of interest, this Note proposes that the majority-rule principle might be better served by simply reducing the sixty-vote cloture threshold- thereby shifting the balance toward majoritarian as opposed to countermajoritarian filibusters than by abolishing the filibuster altogether.