Amy Sepinwall

Amy Sepinwall (Forthcoming), The Conduct-Status Connection in the Wedding Vendor Cases.

Amy Sepinwall (2023), Tender and Taint: Money and Complicity in Entanglement Jurisprudence, NOTRE DAME L. REV., 98 (4), p. 1623.

Abstract: Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception to the law’s general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the law’s liberalism falls away. Money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby, the Supreme Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars. Pecuniary association explains material support cases where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group’s violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues, even though they were not going to fund the union’s political activity, can be understood on similar grounds. The first aim of this piece is to trace the law’s divergent approaches to shared responsibility. On the one hand, the law’s atomism generally constrains complicity. But the doctrine tells a very different story where money is the means of association. I aim to draw out this divergence across numerous doctrinal areas, including compelled hosting, campaign finance, public accommodations, and school choice. Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law’s special solicitude for money. Two findings emerge. First, Christian concerns with purity—along with the inevitable intermingling with the profane that market interactions involve—prompt a heightened focus on pecuniary association. But, second, the understanding of the evil of pecuniary complicity in Christian thought is far more defensible than the one embodied in secular law.

Amy Sepinwall (2022), Breaking Down Bigotry, Book Review Essay of Linda McClain’s Who’s The Bigot?, CONSTITUTIONAL COMMENTARY, 37 (1), p. 97.

Amy Sepinwall (2022), Shared Guilt among Intimates, INTERNATIONAL JOURNAL OF PHILOSOPHICAL STUDIES, 30 (3), p. 202.

Abstract: This paper seeks to vindicate a common but philosophically puzzling phenomenon: Sometimes, a person experiences extreme guilt in relation to a wrong that their loved one has committed, even though they are not at fault for that wrong. Guilt in these cases violates a foundational principle in our moral lives – viz., the fault principle. On that principle, one is blameworthy for a wrong only if one is at fault with respect to that wrong. Insofar as the family members explored here are not at fault, their professed experience of guilt looks to be irrational. Against the charge of irrationality, I argue that it is sometimes morally appropriate, and perhaps even morally required, to judge oneself to be blameworthy for the wrong of a loved one in which one played no culpable part. Further, insofar as the first-personal experience ought to dictate the responsibility assessments of victims and third parties, I conclude that these other individuals will have reason to take the intimate to be blameworthy too. I end by extending the phenomenon of faultless guilt beyond the intimate context, to the experience of white guilt.

Amy Sepinwall (2022), Corporate Coverture, JOURNAL OF CORPORATION LAW, 47 (4), p. 1071.

Amy Sepinwall (2021), Conscience in Commerce: Conceptualizing Discrimination in Public Accommodations, CONN. L. REV., 53 (1), p. 1.

Abstract: According to much current law and theory, a public accommodation that offers a good or service to one customer cannot refuse to provide that same good or service to another patron simply because of the latter’s identity. Thus, in many jurisdictions, reception hall owners must rent their spaces to both a Black Baptist Church and the Christian Identity KKK, wedding vendors must sell their goods to a marrying couple no matter the sex of the couple’s members, and foster parent agencies must serve same- and opposite-sex parenting duos alike. Call the principle underpinning this policy the “Equal Access” principle: The principle holds that a vendor can choose the products he sells but not the customers he serves; equally, a public service agency can choose its portfolio but not its patrons. The principle lies at the core of recent cases in which religion and sexual orientation, or religion and gender identity, have clashed in public accommodations, and it is pervasive among commentators who seek to ensure that the retail sphere—whether commercial or charitable—remains a discrimination-free zone. This Article champions the egalitarian spirit of Equal Access, but it argues that the principle itself is unworkable, unreliable, and perhaps even incoherent. Equal Access permits impermissible discrimination and forbids refusals of service that in fact promote equality’s ends. Further, Equal Access derives support from a problematic conception of the retail sphere—one that sees commerce as amoral and so cannot even make sense of a vendor’s interest in exercising their conscience at work. In place of this morally neutered conception, this Article aims to vindicate a picture of the marketplace as richly moral. And in place of Equal Access, this Article aims to offer a more principled and nuanced account of when and why retail discrimination is impermissible. That account would forbid identity-based discrimination but permit refusals of service for projects that foster hate toward protected groups, even where the hate-based project is intimately linked to a protected characteristic (as with religious groups that mandate white supremacy). Far from perpetuating discrimination, these refusals instead promote anti-discrimination norms, and they help realize the vision of the morally inflected marketplace that this Article defends.

Eric Orts and Amy Sepinwall (2020), Collective Goods and the Court, WASH. U. L. REV., 97 (3), p. 637.

Abstract: Not everything is or should be for sale. Collective goods such as our democracy and parts of our natural environment would be destroyed if they were transformed entirely into commodities to be bought and sold in commercial markets. This Article examines a discrete and unexplored topic within the larger literature on commodification: the extent to which the U.S. Supreme Court participates in the commodification of collective goods. The Court shifts market boundaries through its constitutional interpretations that glorify commodities and exalt individual rights at the expense of collective goods. Examining two lines of cases holding that “money is speech” and “waste is commerce,” this Article contributes a theoretical understanding of the nature of collective goods and their commodification through constitutional interpretation. It also makes recommendations for how the Court and our larger society should address these kinds of issues in the future.

Amy Sepinwall and Nicolas Cornell (2020), Complicity and Hypocrisy, Politics, Philosophy and Economics, 19 (2), p. 154.

Abstract: This article offers a justification for accommodating claims of conscience. The standard justification points to the pain that acting against one's conscience entails. But that defense cannot make sense of the state's refusal to accommodate individuals where the law interferes with their deeply meaningful but nonmoral projects. An alternative justification, we argue, arises once one recognizes the connection between conscience and moral address: One's lived moral convictions determine when and with what force one can hold others to account. Acting against one's convictions can undermine one's standing to blame others who act in similar ways. When the state compels someone to act against conscience, it renders her complicit in conduct she takes to be wrong and thereby impairs her ability to condemn similar conduct in the future, in a manner akin to the hypocrite. The reason the state should not compel people to act against conscience, then, is that doing so would undercut their moral standing.

Amy Sepinwall (2020), Jurisprudence, Halakhah, and Moral Particularism, VILLANOVA L. REV., 64 (5), p. 757.

Amy Sepinwall (2020), Free Speech and Off-Label Rights, GEORGIA L. REV., 54 (2), p. 463.

Abstract: When a litigant invokes a constitutional right to protect interests different from the ones underpinning the right, he engages in what this Article calls an off label rights exercise. The Free Speech Clause has recently become an especially prominent, and troubling, site of off-label rights exercises. Two of the most prominent cases in the Supreme Court’s last term involved litigants who invoked their constitutional rights to free speech to protect interests that have nothing to do with speech or expression. In Janus v. American Federation of State, County, & Municipal Employees, a state employee argued that forcing him to pay for the union’s bargaining activities violated his rights against compelled speech. But the union would be speaking for him — representing him along with all of his fellow employees in labor negotiations — whether or not he was made to pay union dues. His free speech claim was then a smoke screen used to protect a purely pecuniary interest — or again an off-label rights exercise, and an opportunistic one at that. Second, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a baker who opposed same-sex marriage on religious grounds argued that requiring him to provide custom wedding cakes to same-sex couples violated his free speech rights. But, just as in Janus, speech was incidental to the baker’s true interest. Had the Court granted the baker’s free speech claim — finding that he could deny a gay couple a wedding cake with unique artistic designs but still requiring him to provide an unadorned cake — the baker would likely have been no better off. For speech or artistry does not implicate a wedding vendor in a same-sex marriage any more than a non-expressive contribution does. Here too then the free speech claim was off-label — an effort to leverage the law’s greater solicitude for speech relative to religious freedom even while the baker does not have the expressive interests grounding constitutional rights to free speech. This Article uses cases like the baker’s, which the Court will almost surely revisit, to advance a theory of the proper scope of constitutional rights, distinguishing between on- and off-label rights invocations. To that end, the Article’s first aim is to establish that artistic wedding vendors’ invocations of the Free Speech Clause are in fact off-label. The Article’s second and larger aim is to critique off label constitutional rights exercises. This Article argues that every off-label rights exercise demeans the asserted right, and risks creating intolerable inequality relative to the person who shares the litigant’s true interest but who cannot make her claim fit within the contours of the misappropriated right. For that reason, the Article concludes, courts have good reason to deny off-label rights claims — especially in cases like the wedding vendor challenges, as the Article ultimately demonstrates.