ABSTRACT
The US Supreme Court’s recent decision in Bostock v Clayton County, Ga has understandably received considerable popular and scholarly attention, both for its substantive holding and for its opinions’ dueling approaches to statutory interpretation. Writing for the majority, Justice Neil Gorsuch rejected allowing extratextual considerations – such as assumptions about statutory purpose and expectations of bygone eras – to influence the interpretation of unambiguous text. And he implored courts to eschew related interpretative gestures – dubbed ‘canon[s] of donut holes’ – that atextually limit the reach of statutory language.
In this Essay, I argue that one such canon of donut holes is the ‘zone of interests’ test, as articulated in Lexmark International, Inc v Static Control Components, Inc. Applicable to all statutory causes of action, that test invites reliance on extratextual considerations to limit a statute’s reach to only those plaintiffs within the ‘zone of interests’ Congress supposedly meant to protect. The test clashes with the interpretive principles championed by the Bostock majority. Bostock, in fact, may cast doubt on all clear-statement rules, substantive canons, and judicial doctrines that limit the reach of statutory causes of action: those rules, canons, and doctrines conflict with now-prevailing notions of textualism and perhaps even the separation of powers.
Diedrich, Joseph, Bostock v Lexmark: Is the Zone-of-Interests Test a Canon of Donut Holes? (March 3, 2021). University of Cincinnati Law Review, volume 89, no 4, 2021.
First posted 2021-03-30 13:20:15
Leave a Reply