The Jurisprudence of Mixed Motives.

• Author: Verstein, Andrew

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.

Yet the jurisprudential disorder seems to run especially deep when mixed motives are involved. Circuit splits are ubiquitous, (15) compelling the Supreme Court of the United States to decide a mixed motives case essentially every other year. (16)

But this judicial attention has not improved the quality of discourse concerning mixed motives. Apart from a few headline opinions, (17) courts typically offer no justification for their treatment of mixed motives, (18) or they import whole doctrinal structures from other domains on an ad hoc basis. (19) When courts do justify their choice of motive standard, it is rarely by reference to policy goals. The most common judicial rationale presents a false dichotomy, endorsing a given standard because one alternative standard is unworkable. (20) Courts rarely acknowledge that there are more than two ways to analyze motives. (21)

If there is a failure of imagination as to the doctrinal options, it may represent doctrinal parochialism. Courts seldom venture far from the instant controversy in search of approaches to mixed motives, even though mixed motives questions have been addressed in myriad domains: legal ethics, constitutional law (voter districting, school desegregation, jury selection, free speech and censorship, takings), labor law, landlord-tenant law, intentional torts, vicarious liability, evidence, property, health law, contract law, corporate law, employment discrimination, securities enforcement, taxation, bankruptcy, and more. (22) A careful understanding of mixed motivation would require a study of how mixed motives work in each of these domains and why.

The academy could provide courts with guidance, but scholars rarely compare one domain's motive rules to another, (23) and no comprehensive comparison has ever been published. Instead, scholarly interest in motive has mostly centered on the question of whether the law should care about motive at all. (24) While extremely important, this discussion has occluded attention to our current practices. We debate whether to do something without a clear sense of how it is done.

This Article's ambition is to organize and categorize the law's many motive tests, rationales, and policies. No prior work has attempted a transsubstantive taxonomy and theorization of the role of mixed motives in the law. This project is intended both to spur scholarly interest in our surprisingly undertheorized jurisprudence of mixed motives and to empower courts and commentators as they confront motives cases. It is not essential that all courts use the same mixed motive standard in all cases, but it is essential that courts know what their options are, know what is at stake in the standard they select, and know how to communicate the standard to future litigants. This Article is meant to help and to draw other scholars into doing so. (25)

An operating premise of this Article is that the elusiveness of motives jurisprudence is a barrier to its theorization. We are unaccustomed to comparing different quanta of mental events, (26) such as whether a defendant's bad motive was "de minimis, more than a scintilla but less than a preponderance, clear possibility or a predominant motive." (27) It is easy to conflate unfamiliar concepts, (28) or to equivocate as to the meaning of terms, (29) unless we are clear about what we are talking about, and clear in how we talk about it. A precise and value-neutral descriptive vocabulary can help courts to identify what rules they are using, practitioners to compare rules and predict outcomes, and scholars to reflect on the meaning and desirability of rules. (30)

Despite being facilitative, this Article's framework is not an empty vessel. Application of the descriptive vocabulary leads to important insights about the use of mixed motive standards. Here are three such findings:

* Quantity: There are over one thousand clearly definable motive standards, about a dozen of which have much to recommend them. Yet only four rules are commonly used by courts. The space of viable motive standards is at once larger than scholars and courts realize, and yet small enough for comprehension.

* Clarity: The most vexing issue for decades in mixed motive law--what standard is actually used in employment discrimination cases--has a clear answer.

* Workability: Mixed motive analysis is much easier than commonly thought. Courts should be less reluctant to allow mixed motive analysis because when they do it, they can cabin its scope to the pertinent issues.

This Article does not venture a comprehensive theory about when we should use motive in our laws, nor about what motive standard is appropriate in a given case, (31) the appropriate stage in litigation for motive to be addressed, (32) nor the remedy appropriate after a motive standard is satisfied. (33) This Article is meant to be compatible with whatever normative commitments the law--or reader--brings to its evaluation of motive. (34)

The Article proceeds as follows: Part I briefly surveys mixed motivation in the law, noting how little is settled, consistent, or defensible (let alone all three). Part II develops a descriptive vocabulary for characterizing motives and motive standards. Part III applies that vocabulary to draw descriptive conclusions about motive analysis.

1. MOTIVE AS WE FIND IT

   1. A Mixture of Motives Rules

      The law often avoids consideration of mixed motives by denying the legal relevance of motives at all, (35) or by construing facts in a way that denies that motives are indeed mixed. (36) Despite these avoidance techniques, motives analysis is ubiquitous, and courts make use of a variety of standards for scrutinizing mixed motives. (37)

      Unfortunately, courts tend to be less clear about the standard they adopt than the standards they reject. A plaintiff is disqualified from leading collective corporate litigation if her motives are sufficiently impure, (38) but courts do not require utterly pure motives either, (39) leaving us to guess where the line is. When bankruptcy courts decide whether a creditor should be disenfranchised (or "designated") for using its votes in bad faith, (40) we know that the standard is not whether nobler motives would have led to different conduct, but we do not know what the standard is. (41) We know that plaintiffs win an employment discrimination lawsuit if race, color, national origin, sex, or religion was a "motivating factor" for adverse treatment, (42) but we do not know what a "motivating factor" is. (43)

      When the standard is clear, it may differ by forum. Prosecutors are forbidden from striking jurors because of their race or gender, (44) but what standard governs mixed motive jury selection, when the prosecutor had both illegitimate and legitimate reasons for striking? Most state courts would say that an iota of bias taints the voir...