Robert L. Tsai (Boston University - School of Law) has posted Abandoning Animus (Alabama Law Review, Vol. 74, 2022) on SSRN. Here is the abstract:
This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the Supreme Court has actually employed the anti-animus idea, it has done so haphazardly and problematically. Thus, the evidence of judicial use of the concept is not encouraging. Third, judges might not need the concept of animus to do the work of equality. Existing animus cases can be easily reimagined to emphasize the key principles and concerns of equality. Fourth, incentivizing litigants to make animus-based arguments may distract from core considerations, including the nature of the social good at stake and the material effects of unequal policies. If some or all of these observations are correct, it may be time to abandon animus.
Highly recommended.
