Text is Not Enough
93 University of Colorado Law Review (Forthcoming 2021)
38 Pages Posted: 8 Jun 2021
Date Written: June 7, 2021
In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act protects gays and lesbians from employment discrimination. The three opinions in the case have 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
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