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In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch's majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Justice Gorsuch for what they deemed a careful and sophisticated--even 'magnificent' and 'exemplary'--application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Article shows that conservative critics of the majority's reasoning were correct--up to a point. Specifically, it argues that Title VII's ban on discrimination 'because of' an employee's 'sex' does not cover discrimination because of their sexual orientation as a matter of 'plain' or 'ordinary' meaning. Further, it demonstrates that Justice Gorsuch's effort to establish that result as a matter of 'legal' meaning wholly fails because it depends upon a fatally flawed application of the 'but-for' test for causation, one that flouts bedrock principles of counter/actual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Article endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito 's principal dissent., INTRODUCTION 68 I. BOSTOCK IN BRIEF 73 A. The Decisions Below 71 B. The Supreme Court Resolves 76 II. TORTURED TEXTUALISM 79 A. Ordinary Meaning 80 1. A First Pass [...]

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one litigant or rule over another when individual principles point in opposite directions. It develops and tests its claims by analyzing two questions at the law’s frontiers: whether free exercise principles support a constitutional entitlement to exemption from antidiscrimination obligations beyond what free speech principles alone mandate, and whether publicly chartered religious schools are constitutionally permitted, required, or prohibited. This is an investigation into the constitutional law of religious liberty, of course. But two of the three essential tasks it tackles—explaining how our principles are what they are and how multiple principles could ever provide determinate legal answers to contested constitutional questions— are critical across all regions of constitutional law. Accordingly, this Article examines the constitutional law of religious liberty both for its own sake and as a window into the fundamental elements and mechanics of American constitutional law generally. Its central arguments are that principles are the building blocks of our constitutional law, that they change organically as legal practices and commitments change, and that they can yield singular constitutional facts or rules despite their plurality. [ABSTRACT FROM AUTHOR]

Philosophers disagree about whether outcome luck can affect an agent's "moral responsibility." Focusing on responsibility's "negative side," somemaintain, and others deny, that an action's results bear constitutively on how "blameworthy" the actor is, and on how much blame or punishment they "deserve." Crucially, both sides to the debate assume that an actor's blameworthiness and negative desert are equally affected--or unaffected--by an action's results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that serve distinct normative functions: blameworthiness serves a liability function (removing a bar to otherwise impermissible treatments), whereas desert serves a favoring function (contributing new value to states of affairs, or providing new reasons for responsive treatments). Having distinguished (negative) desert from blameworthiness, the article proposes a novel resolution to the outcome-luck debate: that results do not affect an agent's liability to blame, but do affect the amount and severity of blame towhich the agent is justly liable, including by affecting the severity of blame that the agent deserves. [ABSTRACT FROM AUTHOR]

A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW. By Antonin Scalia. Princeton and Chichester: Princeton University Press. 1997. Pp. xiii, 149. $18.95. INTRODUCTION Justice Antonin Scalia died last February, [...]

REFLECTIONS ON JUDGING. By Richard A. Posner. Cambridge and London: Harvard University Press. 2013. P. 366. $29.95. INTRODUCTION The world is complex, Richard Posner (1) observes in his most recent [...]

A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin's challenge to Hartian positivism levelled in The Model of Rules I. It argues that the underappreciated significance of Dworkin's distinction between rules and principles is not that Hart's model cannot allow for the existence of legal principles, but that it cannot make sense of their operation. Hart's model posits that legal rules are determined in a rule-like ('lexical') way, whereas legal principles contribute to rules in a manner that is at least partly non-lexical. The upshots of this reinterpretation are: first (against most positivists) that Dworkin's challenge does require some reworking of Hart's positivist theory; and second (against most anti-positivists) that the reworking required to meet Dworkin's challenge does not necessitate positivism's abandonment. [ABSTRACT FROM AUTHOR]

ABSTRACT The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. [...]

The article discusses what law and sport have something to teach each other. It explains the reliance of sports and legal systems on the same type of tool to achieve a diversity of ends within a diversity of constraints. Some of the lessons that lawyers and law students can learn from sport, including those related to the use of rules to their advantage and those related to the imposition of penalties on cheaters.