Showing papers on "Majority opinion published in 2021"

Bostock's Paradox: Textualism, Legal Justice, and the Constitution

Abstract: The Supreme Court’s opinion in Bostock v. Clayton County, Georgia—recognizing that anti-gay and anti-trans discrimination are forms of sex discrimination under Title VII of the 1964 Civil Rights Act—has already gained a steady reputation as a textualist statutory interpretation decision. The reality of the ruling is far more complicated than that. Bostock is a textualist decision, but, as the argument here shows, Bostock also offers a construction of Title VII’s sex discrimination rule that sounds in a rule-of-law norm of legal justice about LGBT equality that itself traces roots to the Supreme Court’s constitutional LGBT rights jurisprudence. Bostock’s rule-of-law norm of legal justice, which expands and diffuses constitutional norms of LGBT equality in new ways, does more than shape Bostock’s interpretation of Title VII. Through it, Bostock supplies state actors, including courts, with instruction on how to treat all claims of lesbian, gay, and now trans rights, whether they formally involve constitutional rights claims or, as in Bostock, do not. In Bostock’s wake, state actors must ordinarily treat LGBT persons just the same as their cisheterosexual counterparts, affording them the same benefits of established and new legal protections that cisheterosexuals receive. The path to this larger picture proceeds through an account that explains Bostock both is—and is not—a textualist decision. The opinion’s textualist self-accounting, tracked in these pages, lacks normative justificatory punch on the central interpretive question raised by the claims it decides: whether Title VII’s sex discrimination ban covers anti-gay and anti-trans discrimination. A careful reading of Bostock shows the opinion both disparaging and then ultimately embracing “extratextual” reasons for choosing to read Title VII’s sex discrimination rule in the pro-gay and pro-trans directions that it does. The most telling of these reasons, in a dramatic turn, abandons the majority’s textualist hunt, and reaches for a general, rule-of-law ideal of legal justice—a distinctive understanding of formal equality involving LGBT persons—that emerges from, and extends to new levels, the legal foundations of the U.S. Supreme Court’s pro-lesbian and pro-gay constitutional rights jurisprudence, whose pro-trans legal implications are expressly recognized by the Supreme Court in Bostock for the first time. Bostock’s announcement of the operations of legal justice in the case—a stylized extension of operative constitutional norms—has far-reaching implications for the interpretation of other statutes that may benefit LGBT persons, as well as other legal rules that, now or in the future, implicate LGBT rights. Understanding how Bostock follows a line of justification found in the Supreme Court’s constitutional promises of equal dignity and respect for lesbian women, gay men, and trans people frames an account of what is legally misguided about the textualist approaches taken up by the Bostock dissents. These opinions, which indulge both anti-gay and anti-trans sentiments as touchstones for their own preferred choices for how to read Title VII’s sex discrimination ban, flout constitutional values that strip those choices of their own easy claims to legality. Having identified the legal flaws of the dissents’ textualist analytics, discussion turns to the most significant of the likely reasons why the Bostock majority opinion does not expressly avow the constitutional and rule-of-law grounds for its decision. No matter, the recognition of Bostock’s foundations in constitutionalism recasts the pressures the Supreme Court will face in future cases taking up questions that Bostock formally brackets, as well as other wonders about its own text’s meaning. With time, Bostock may prove to be an even bigger breakthrough for LGBT equality and rights under law than at first glance it seems.

Consensus in Sentiment Analysis

Abstract: The objective of this chapter is to present a method applicable in group decision-making where computing the opinion of the majority of participants is key. In this article, we present a method that makes use of Induced Ordered Weighted Averaging (IOWA) operators to aggregate a majority opinion out of a number of Sentiment Analysis (SA) classification systems. The numerical output of each SA classification method is used as input to a carefully chosen IOWA operator that is semantically equivalent to the fuzzy linguistic quantifier ‘most of’. The object of the aggregation will be the intensity of the previously determined sentence polarity in such a way that the results represent what the majority thinks.

Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

Abstract: The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2106 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Bostock was Bogus: Textualism, Pluralism, and Title VII

Abstract: In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

Bargaining and Strategic Voting on Appellate Courts

Abstract: Many appellate courts and regulatory commissions simultaneously produce case dispositions and rules rationalizing the dispositions. We explore the properties of the American practice for doing this. We show that the median judge is pivotal over case dispositions, although she and others may not vote sincerely. Strategic dispositional voting is more likely when the case location is extreme, resulting in majority coalitions that give the appearance of less polarization on the court than is the case. The equilibrium policy created in the majority opinion generically does not coincide with the ideal policy of the median judge in either the dispositional majority or the bench as a whole. Rather, opinions approach a weighted center of the dispositional majority but often reflect the preferences of the opinion author. We discuss some empirical implications of the American practice for jointly producing case dispositions and rules.

Majority Opinion Diffusion in Social Networks: An Adversarial Approach.

Abstract: We introduce and study a novel majority based opinion diffusion model. Consider a graph G, which represents a social network. Assume that initially a subset of nodes, called seed nodes or early adopters, are colored either black or white, which correspond to positive or negative opinion regarding a consumer product or a technological innovation. Then, in each round an uncolored node, which is adjacent to at least one colored node, chooses the most frequent color among its neighbors. Consider a marketing campaign which advertises a product of poor quality and its ultimate goal is that more than half of the population believe in the quality of the product at the end of the opinion diffusion process. We focus on three types of attackers which can select the seed nodes in a deterministic or random fashion and manipulate almost half of them to adopt a positive opinion toward the product (that is, to choose black color). We say that an attacker succeeds if a majority of nodes are black at the end of the process. Our main purpose is to characterize classes of graphs where an attacker cannot succeed. In particular, we prove that if the maximum degree of the underlying graph is not too large or if it has strong expansion properties, then it is fairly resilient to such attacks. Furthermore, we prove tight bounds on the stabilization time of the process (that is, the number of rounds it needs to end) in both settings of choosing the seed nodes deterministically and randomly. We also provide several hardness results for some optimization problems regarding stabilization time and choice of seed nodes.

Stricter Scrutiny of Treaty Violations? How McGirt v. Oklahoma and Textualism Could Buttress American Indian Sovereignity

Abstract: The 2020 US Supreme Court decision in McGirt v. Oklahoma recognized surviving rights of the Creek nation in a reservation covering much of eastern Oklahoma. This article analyzes the majority opinion's use of textualism, which relies on close reading of Congressional acts, rather than considerations of policy or equity, to rule in favor of the Creek position. The dissent, ostensibly using the same analytical approach, comes to the opposite conclusion by defending a number of oppressive measures taken by the US Government to displace the Creek. Because the decision was 5-4, with the late Justice Ginsburg in the majority, the future impact of this decision is very much in doubt.

The majority vote process and other consensus processes on trees

Abstract: The majority vote process was one of the first interacting particle systems to be investigated. It can be described briefly as follows. There are two possible opinions at each site of a graph G. At rate 1−e, the opinion at a site aligns with the majority opinion at its neighboring sites and, at rate e, the opinion at a site is randomized due to noise, where e∈[0,1] is a parameter. Despite the simple dynamics of the majority vote process, its equilibrium behavior is difficult to analyze when the noise rate is small but positive. In particular, when the underlying graph is G=Zn with n≥2, it is not known whether the process possesses more than one equilibrium. This is surprising, especially in light of the close analogy between this model and the stochastic Ising model, where much more is known. Here, we study the majority vote process on the infinite tree Td with vertex degree d. For d≥5 and small noise, we show that there are uncountably many mutually singular equilibria, with convergence to such an equilibrium occurring exponentially quickly from nearby initial states. Our methods are quite flexible and extend to a broader class of models, consensus processes. This class includes the stochastic Ising model and other processes in which the dynamics at a site depend on the number of neighbors holding a given opinion. All of our proofs are carried out in this broader context.

Bostock: un caso de discriminación laboral

Abstract: Strictly speaking, Bostock is not a constitutional case. It is an employment law case: more precisely, one of discriminatory dismissal. Neil Gorsuch, who writes for the majority of the Roberts Courts, confines the issue to the interpretation of the Civil Rights Act (1964), without developing a real “constitutional argument”. From the perspective of legal reasoning, Bostock is an originalist decision. Both the majority opinion and the dissenting opinions of Samuel Alito and Brett Kavanaugh are attempts to reconstruct and apply the original meaning of the phrase “because of sex”. In this decision, several forms of originalism intertwin: there is clash between the textualist doctrine, on the one hand, and the doctrine of public meaning combined with intention-based arguments, on the other. But, in truth, the majority opinion's textualism seems to “hide” a dynamic and evolutionary interpretation that updates the original meaning of the Civil Rights Act to include sexual orientation in the protection against sex-based discriminations. When combined with other recent decisions, Bostock seems part of a broader strategy of the Roberts Court oriented towards the systematization of the federal law in the area of employment discrimination.

Disagreeing in private or dissenting in public: an empirical exploration of possible motivations

Abstract: There are different theories to explain judicial dissent in collegial courts or committees. In the Spanish Council of State (Consejo de Estado), councilors can disagree with the majority opinion without filing an individual separate opinion. Drawing on a newly assembled dataset of all nonunanimous decisions for the period 2002–2018, we explore possible determinants to explain the individual decision to file a separate opinion when there is already explicit disagreement. We find that professional background and demographics seem to be the most powerful explanatory variables rather than characteristics of the case.

Empirical Research on Ethical Preferences: How Popular Is Prioritarianism?

Abstract: We survey the empirical literature on ethical preferences, covering both survey studies and incentivized laboratory experiments. Crucial axioms such as the Pigou-Dalton transfer principle are not accepted by a large fraction of the subjects. Moreover, in formulating their distributive preferences subjects attach much importance to the sources of income differences. Their preferences behind a veil of ignorance do not coincide with their preferences in the position of a social planner. These results suggest that prioritarian policy proposals will not necessarily be supported by a majority of the population. Although the majority opinion does not necessarily reflect the ethically desirable perspective, the empirical results still raise some interesting normative challenges.