The Failure of Mixed Motives Jurisprudence

73 Pages Posted: 19 Jul 2018 Last revised: 12 Jun 2019

See all articles by Andrew Verstein

Andrew Verstein

University of California, Los Angeles (UCLA) - School of Law

Date Written: June 27, 2018


Because legal determinations often turn on motive, and motives are often complex, courts must decide what to do about mixed motives. For example, a boss might fire someone both for lawful reasons relating to job performance and also because of illegal prejudice. Increasingly, courts evaluate such cases under a “But-For standard,” which finds for the plaintiff only if the defendant would have acted differently but for the bad motive. Put another way, the defendant loses unless the bad motive made some kind of causal difference in outcomes. While this approach is intuitive, I argue that the But-For standard is problematic. The widespread acceptance of the But-For standard is the most important failure in our jurisprudence of mixed motives

Keywords: Motives, Mixed, Travel Ban, Trump, Hawaii, IRAP, Discrimination, Mt. Healthy, Doyle, Causation, Permissibility, Double Effect, Legal Theory, Palmer, Thompson

Suggested Citation

Verstein, Andrew, The Failure of Mixed Motives Jurisprudence (June 27, 2018). 86 University of Chicago Law Review 725 (2019), Available at SSRN:

Andrew Verstein (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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