Text is Not Enough

50 Pages Posted: 8 Jun 2021 Last revised: 13 Jan 2022

See all articles by Anuj C. Desai

Anuj C. Desai

University of Wisconsin Law School

Date Written: June 7, 2021

Abstract

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multi-modalists, drawing from a panoply of forms of legal argumentation. In particular, Bostock shows that judges are inevitably common-law thinkers, even when interpreting statutes.

Keywords: Statutory Interpretation, Legal History, Textualism, Gay Rights, US Supreme Court, Common Law, Judiciary, Multi-Modalists, Legal History

JEL Classification: K41: Litigation Process

Suggested Citation

Desai, Anuj C., Text is Not Enough (June 7, 2021). Univ. of Wisconsin Legal Studies Research Paper No. 1703, 93 U.Colo.L.Rev. 1 (2021), Available at SSRN: https://ssrn.com/abstract=3861914

Anuj C. Desai (Contact Author)

University of Wisconsin Law School ( email )

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