Professor Andrew Verstein’s ‘The Jurisprudence of Mixed Motives’ is highly recommended on the Legal Theory Blog
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February 23, 2017
Andrew Verstein (Wake Forest University School of Law) has posted “The Jurisprudence of Mixed Motives” (Yale Law Journal, Forthcoming) on SSRN.
The abstract follows:
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? Why? This Article is 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, in turn, yields numerous insights. For example: nearly all domains of law pick among just four motive rules, and the one most intuitive to courts and scholars is essentially always the wrong choice.