Faculty Bibliography

In philosophy, economics, and law, the idea of voluntary agreements plays a central role. It orients contractarian approaches to political legitimacy. It also helps support the claim that outsiders, and especially the state, should not interfere with private contracts. But contractarianism in political philosophy stands (or falls) on altogether different grounds from enthusiasm for contractual ordering in economics and law. When participants in voluntary agreements lack information or suffer from behavioral biases (including adaptive preferences), there is reason to help them, potentially through mandates and bans. In philosophy, the idea of contractarianism can help lead to instructive thought experiments about what justice requires, as with John Rawls’ use of the veil of ignorance and the original position; it should not be taken as a basis for theories of legitimacy that rest on actual agreements among actual groups, in which some people have more information and power than others, and in which malice and self-interest may lead to distortions.

His new book refuses to recognize that the court is political.

Amid a racial uprising and calls for “political revolution,” why pretend that our political disputes turn on the “best” reading of an eighteenth-century text, the Constitution?

The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment—notably, on whether to grant parole. We study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise a criminal’s initial sentence on the basis of deterrence-relevant information obtained during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on avoiding recidivism.

In this opinion note, we explore ways to understand the contemporary encounters between a growing global counterterrorism architecture and impartial humanitarian activities while critically assessing our own role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities.

A new bill curbing presidential powers addresses problems that arise during Republican and Democratic presidencies. Members of Congress in both parties should embrace its reforms.

At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.

Corporations pay out large settlements to their shareholders and other plaintiffs as compensation for corporate governance failures. Hired to achieve and improve settlements, plaintiff law firms can play a central role in litigation outcomes. We provide first systematic evidence of their performance. In our novel comprehensive dataset, top plaintiff law firms (“stars”) capture 48% larger settlements. Defendant corporations’ litigation insurance coverage is also 39% larger, suggesting assortative matching of stars with lawsuits that have ex-ante large expected payoffs. Stars’ visibility and information advantage vis-à-vis less sophisticated plaintiffs help sustain their market share.

Psychedelics have shown great promise in treating mental-health conditions, but their use is severely limited by legal obstacles, which could be overcome.

Textual redundancy is one of the main challenges to ensuring that legal texts remain comprehensible and maintainable. Drawing inspiration from the refactoring literature in software engineering, which has developed methods to expose and eliminate duplicated code, we introduce the duplicated phrase detection problem for legal texts and propose the Dupex algorithm to solve it. Leveraging the Minimum Description Length principle from information theory, Dupex identifies a set of duplicated phrases, called patterns, that together best compress a given input text. Through an extensive set of experiments on the Titles of the United States Code, we confirm that our algorithm works well in practice: Dupex will help you simplify your law.

Progressives are taking Supreme Court reform seriously for the first time in almost a century. Owing to the rise of the political and academic left following the 2008 financial crisis and the hotly contested appointments of Justices Neil Gorsuch and Brett Kavanaugh, progressives increasingly view the Supreme Court as posing a serious challenge to the successful implementation of ambitious legislation. Amy Coney Barrett’s confirmation to take Justice Ruth Bader Ginsburg’s seat after her death in fall 2020 brought these once-marginal concerns to the forefront of American political debate, prompting a promise from now-President Joseph Biden, on the eve of his election, to form a national commission for court reform. Despite this once-in-a-lifetime energy around the idea of court reform, the popular and academic discussion of how to reform the Supreme Court has been unduly constrained. Even if the commission proves to be a ploy to postpone reform, it is crucial to clarify the debate around possible ends and means of reform, for the debate is unlikely to die out. This is the case with regard to the mechanism and the purpose of reform alike. On the left, historical memory has limited debate almost entirely to “court-packing.” Meanwhile, the center has occupied itself with how to restore the Supreme Court’s legitimacy by rescuing the institution from its regrettable slide into partisanship. And now, as the Court appears to moderate itself in an effort to preempt legislative reform of the institution, the concern is that progressives will drop their demands for change, satisfied with a few modest judicial concessions. This Article aims to keep the discussion of court reform alive for more propitious circumstances and, just as importantly, to significantly expand its bounds. It does so, first, by urging progressives to reject the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme. Second, the Article introduces a distinction between two fundamentally different mechanisms of reform. The first type of reform, which we call personnel reforms, includes both aggressive proposals like court-packing and more modest (or politically moderate) reforms such as partisan balance requirements or panel systems. All of these reforms take for granted the tremendous power the Supreme Court wields. What these proposals do is change the partisan or ideological character of the individuals who wield it. The second type of reform, which we call disempowering reforms, includes proposals like jurisdiction stripping and a supermajority requirement for judicial review. These reforms take power away from the Court and redirect it to the political branches instead. As we argue, personnel reforms are mostly addressed to the legitimacy frame that progressives would do well to reject. More still, to the extent such reforms advance progressive ends, they do so only contingently and threaten to do as much harm as good over time. By contrast, disempowering reforms, we argue, advance progressive values systematically. While such reforms would not guarantee advances in social democracy, they would ensure that the battle for such advances takes place in the democratic arena. For progressives, this is where such reforms have to occur now—and should occur if they take place anywhere.

Modern legal systems are not usually designed to protect Indigenous traditional knowledge or traditional cultural expressions but are, more often, historically complicit in their misuse or suppression. The undefined status of traditional knowledge has left Indigenous communities vulnerable to harms not readily cognizable by either common or civil law systems: exploitation of those communities’ genetic resources and medical knowledge, demeaning of their sacred symbols, and further alienation from their culture and land following colonial dispossession. Indigenous groups have therefore sought greater protection of traditional knowledge through a range of domestic and international legal avenues. This Article examines the experience of Australia as the common law jurisdiction that has likely gone furthest in protecting traditional knowledge. Aboriginal Australian claimants have found varying degrees of success through mechanisms such as copyright law, patent law, consumer protection, fiduciary claims, and privacy rights. Even at their most successful, however, these claimants have not obtained recognition of the unique interests represented by traditional knowledge. Instead, they have been forced to translate their claims into terms close to the conventional utilitarian or personality-based justifications for intellectual property. Australia therefore illustrates the potential of a common law system’s ability to incrementally adapt to novel claims—but also that system’s ultimate inadequacy.

“Race and colonial law” is the theme of a seminar which aimed to stimulate reflection on the concept of “race”, and the way in which the latter would be likely to enrich the understanding of French law, in particular racial discrimination.

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so. Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

More from Randall Kennedy Among the prominent commentators whose ideas are under attack are Nikole Hannah-Jones, the journalist who was the main figure behind The New York Times’ 1619 Project; Kimberlé Crenshaw, the Columbia University and UCLA law professor who is the most sophisticated and articulate expositor and representative of critical race theory (CRT); and ibram Kendi, director of the Center for Antiracist Research at Boston University. According to Rufo, "critical race theory is the perfect villain." According to Sen. Ted Cruz, the anti-CRT campaign is an uprising by ordinary, patriotic Americans who are learning belatedly that their local schools, infiltrated by CRT thinking, are teaching that "America is fundamentally racist, that all white people are racists... [and] that whites and blacks hate each other and have to hate each other." According to Sen. Josh Hawley, "Critical Race Theory has no business being taught in Missouri [or presumably any other] classrooms."

In this article, we review a growing empirical literature on the effectiveness and fairness of the US pretrial system and discuss its policy implications. Despite the importance of this stage of the criminal legal process, researchers have only recently begun to explore how the pretrial system balances individual rights and public interests. We describe the empirical challenges that have prevented progress in this area and how recent work has made use of new data sources and quasiexperimental approaches to credibly estimate both the individual harms (such as loss of employment or government assistance) and public benefits (such as preventing non-appearance at court and new crimes) of cash bail and pretrial detention. These new data and approaches show that the current pretrial system imposes substantial short- and long-term economic harms on detained defendants in terms of lost earnings and government assistance, while providing little in the way of decreased criminal activity for the public interest. Non-appearances at court do significantly decrease for detained defendants, but the magnitudes cannot justify the economic harms to individuals observed in the data. A second set of studies shows that these costs of cash bail and pretrial detention are disproportionately borne by Black and Hispanic individuals, giving rise to large and unfair racial differences in cash bail and detention that cannot be explained by underlying differences in pretrial misconduct risk. We then turn to policy implications and describe areas of future work that would enable a deeper understanding of what drives these undesirable outcomes.

New psychological research suggests that trigger warnings do not reduce negative reactions to disturbing material—and may even increase them.

Congress needs to act and the executive branch needs to step up.

In “You Bet Your Life,” Paul A. Offit looks at advances that have prolonged life, from chemotherapy to the Covid vaccine, and the difficult, even deadly, paths to arrive at them.

To mitigate climate change, food systems must reduce their greenhouse gas emissions. For consumers, this means switching to more plant-based diets and wasting less food. A behaviorally informed policy employing nudges—educative and architectural—can be a cornerstone. Plant-based defaults promise large reduction effects while maintaining freedom of choice.

Almost one year later, survivors of these horrific abuses are still in precarious situations and require immigration relief.

With respect to the views of dead thinkers, answers to many particular questions are often interpretive in Ronald Dworkin’s sense: such answers must attempt (1) to fit the materials to be interpreted and (2) to justify them, that is, to put them in the best constructive light. What looks like (1), or what purports to be (1), is often (2). That is, when a follower of Kant urges that “Kant would say x,” or that “Kantianism entails y,” the goal is to make the best constructive sense of Kant and Kantianism, not merely to follow something that Kant actually said. An approach to behavioral economics cannot claim to be Hayekian if it is rooted in enthusiasm for the abilities of planners to set prices and quantities, or if it sees the price system as a jumble of mistakes and errors. But within a not-so-narrow range, a variety of freedom-preserving approaches, alert to the epistemic limits of planners, can fairly claim to be Hayekian. Hayekian behavioral economics, I suggest, is an approach that (1) recognizes the importance and pervasiveness of individual errors, (2) emphasizes the epistemic limits of planners, (3) builds on individual choices rather than planner preferences, and (4) gives authority to choices made under epistemically favorable conditions, in which informational deficits and behavioral biases are least likely to be at work. The key step, of course, is (4). If it is properly elaborated, the resulting approach deserves respect, even if some of us, including the present author, would not entirely embrace it. In defending that proposition, the present essay responds to some critical remarks by Robert Sugden, including his resort to “explainawaytions” (Matthew Rabin’s term) for behavioral findings.

Americans increasingly believe the Supreme Court is a political body in disguise. But Justice Stephen Breyer disagrees. Arguing that judges are committed to their oath to do impartial justice, Breyer aims to restore trust in the Court. In the absence of that trust, he warns, the Court will lose its authority, imperiling our constitutional system.

A legal decision once prevented a church from vetoing a Harvard Square restaurant’s liquor license. Now it could prevent other private parties from wielding government power.

Johan van der Walt finds the essence of the concept of liberal democratic law to lie in an uprootedness of law “from life.” He connects that finding to a modern experience of life fundamentally divided. Division of life occurs both at the societal level, as a fact of visionary pluralism, and at the personal level, as an experience of deep-set inner conflicts of passions and motivations. The path to law-from-life uprooting from the experience of external social division may be the more obvious; the path there from the experience of internal conflict may be the more interesting. The two paths join at a crucial place reserved by Van der Walt for indispensable moments of “sacrifice” – or, better, “gift;” or, still better, “graciousness” – in the liberal democratic experience of law. We ask here whether that is also the place of “civility” (in the lexicon of John Rawls), where the conception of liberal democratic law put forth by Rawls in his philosophy of political liberalism may be seen to meet up with the thought of Van der Walt.

In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy” – a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of the agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.” For climate change in particular, the “social cost of carbon,” or more broadly the “social cost of greenhouse gases,” is sometimes described as “the most important number you’ve never heard of.” A key reason is that within the executive branch, the stringency of regulation of greenhouse gases emissions often depends on that number. Another reason is that the social cost of carbon can and should play a role in determining the content of other kinds of initiatives, such as a carbon tax. In the United States, the relevant numbers were challenged in court under the administrations of Barack Obama (where they were upheld) and Donald Trump (where they were struck down). The litigation raises fundamental questions about the role of science, economics, and politics in judicial review of agency action, and about the relationship between courts and the administrative state. With respect to the social cost of carbon: (1) A decision to use the global number, as opposed to the domestic number, would be straightforward to defend against an arbitrariness challenge; a decision to use the domestic number, as opposed to the global number, would be difficult to defend against an arbitrariness challenge. (2) A decision to use a low discount rate, such as two percent, would be straightforward to defend against an arbitrariness challenge; a decision to use a high discount rate, such as seven percent, would be exceedingly difficult to defend against an arbitrariness challenge. (3) A wide range of decisions – involving, for example, climate sensitivity and the damage function -- raise difficult questions in science and economics; they should be straightforward to defend against an arbitrariness challenge, but only if they follow from a reasoned justification. (4) Approaches that take account of equity – including “prioritarianism” – should be defensible against an arbitrariness challenge, as should be a refusal to adopt such approaches, but here again, a reasoned justification is required. (5) A decision to “back out” a social cost of carbon, from some specific target, would be challenging to defend against an arbitrariness challenge. A general lesson, with broader implications, is that judicial review of the social cost of carbon should (and likely will) involve a procedural hard look, not a substantive hard look. A procedural hard look is important to defend against failures of both deliberation and democracy; a substantive hard look would strain judicial capacities.

"Late in the evening of September 1 the U.S. Supreme Court issued an order that many critics have described as effectively overruling Roe v. Wade, the 1973 decision holding that the U.S. Constitution protected a woman’s right to choose to have an abortion. That description, though technically inaccurate, does capture something important about the Court’s order: It made abortions unavailable as a practical matter for many women in Texas who would have had access to abortion services had the Court issued a different order."

While bankruptcy law appoints a federal judge to monitor management's use of bankruptcy powers, the judge's review of management's actions is a deferential one in which the judge balances supervision of management and protection for creditors with respect for management's business judgment. On the one hand, bankruptcy law has long urged managers to negotiate workouts with creditors to limit bankruptcy costs, and this new practice is consistent with that long-standing policy goal. The DIP loan contracts have been sorted into three buckets that capture the level of discretion that management would have after the bankruptcy judge approved the borrowing: (1) "management control DIP loans" that came with few strings attached that restricted management's ability to use the bankruptcy process; (2) "limited discretion DIP loans," which generally came with strict milestones for management to leave chapter 11, but did not otherwise restrict management's ability to use that time to implement whatever restructuring transaction was found to be best; and (3) "bankruptcy process sale loans," in which management agrees in the DIP loan contract to implement a specific transaction negotiated with senior creditors, such as a quick auction process. Why is this happening, and should we be concerned? A Theory of Problematic Process Sales Let's examine the drivers of process sales by analyzing the incentives that senior creditors have to seek control of the bankruptcy process, and when those incentives might lead to a bankruptcy transaction that fails to maximize the value of the firm, which is a key goal of bankruptcy law.

This Essay draws on Jack Balkin’s The Cycles of Constitutional Time to evaluate the prospect of constitutional renewal through judicial review. It begins by questioning Balkin’s conclusion that historical change operates cyclically. It then addresses his assumption that courts have served as a source of constitutional renewal during some periods, including the mid-twentieth century. It argues that the Carolene Products regime that Balkin describes should be understood not as a solution to economic inequality and republican rot in a period of declining political polarization, but rather as a precipitating cause. Indeed, the New Deal settlement may have staved off durable change and thereby produced the seemingly cyclical pattern Balkin observes.

On May 17, 2019, Brown v. Board of Education attained that notable landmark in American life—the age of sixty-five. One of the Supreme Court’s most esteemed decisions became a senior citizen. Brown is a ruling that people tend to think they know even if they have not actually read it. This contributes to a fate that often bedevils celebrities. Observers project their yearnings upon Brown, neglecting its particularities. They sanctify Brown, make it an icon, and invoke its constitutional authority to impose preferred policies. Liberals have done this, and so, too, have conservatives.This essay contains five Parts. Part I defines what I mean by Brown. Part II recalls its painful birth and traumatic childhood. Then, Part III rejects prominent claims said to be justified by Brown. Next, Part IV rebuts frequently heard charges of “betrayal,” noting that the Supreme Court, throughout Brown’s adulthood, has never retreated from the invalidation of segregation in public schooling. Finally, Part V asserts that we should acknowledge Brown’s limits and, renouncing ancestor worship, look to ourselves to fashion fresh ideas that suitably address the new challenges we face.

For the average person, genetic testing has two very different faces. The rise of genetic testing is often promoted as the democratization of genetics by enabling individuals to gain insights into their unique makeup. At the same time, many have raised concerns that genetic testing and sequencing reveal intensely personal and private information. As these technologies become increasingly available as consumer products, the ethical, legal, and regulatory challenges presented by genomics are ever looming. Assembling multidisciplinary experts, this volume evaluates the different models used to deliver consumer genetics and considers a number of key questions: How should we mediate privacy and other ethical concerns around genetic databases? Does aggregating data from genetic testing turn people into products by commercializing their data? How might this data reduce or exacerbate existing healthcare disparities? Contributing authors also provide guidance on protecting consumer privacy and safety while promoting innovation.

This preface to a special issue on Race and the Law of La Revue des Droits de l’Homme, presents a genealogy of Critical Race Theory, framed in light of the tendency in France to avoid fulsome scholarly discussions of racial identity, racial inequality and racial attitudes. The preface also frames its genealogy in light of political attacks on CRT that have been launched both in the United States and elsewhere in the world. Its genealogy frames the origins of CRT in the context of increased scholarly interest in race as a social construction during the 1980s and 1990s, and in the additional context of 1970s, 80s, and 90s scholarship that questioned universalizing and colorblind legal regimes of nations that purported to guarantee equality without regard to race. It also locates CRT within the larger universe of Critical Theory, including Critical Legal Studies, and examines concepts such as social construction, intersectionality, whiteness, structural racism and identity performance.

Smaller, more affordable, and more portable MRI brain scanners offer exciting opportunities to address unmet research needs and long-standing health inequities in remote and resource-limited international settings. Field-based neuroimaging research in low- and middle-income countries (LMICs) can improve local capacity to conduct both structural and functional neuroscience studies, expand knowledge of brain injury and neuropsychiatric and neurodevelopmental disorders, and ultimately improve the timeliness and quality of clinical diagnosis and treatment around the globe. Facilitating MRI research in remote settings can also diversify reference databases in neuroscience, improve understanding of brain development and degeneration across the lifespan in diverse populations, and help to create reliable measurements of infant and child development. These deeper understandings can lead to new strategies for collaborating with communities to mitigate and hopefully overcome challenges that negatively impact brain development and quality of life. Despite the potential importance of research using highly portable MRI in remote and resource-limited settings, there is little analysis of the attendant ethical, legal, and social issues (ELSI). To begin addressing this gap, this paper presents findings from the first phase of an envisioned multi-staged and iterative approach for creating ethical and legal guidance in a complex global landscape. Section 1 provides a brief introduction to the emerging technology for field-based MRI research. Section 2 presents our methodology for generating plausible use cases for MRI research in remote and resource-limited settings and identifying associated ELSI issues. Section 3 analyzes core ELSI issues in designing and conducting field-based MRI research in remote, resource-limited settings and offers recommendations. We argue that a guiding principle for field-based MRI research in these contexts should be including local communities and research participants throughout the research process in order to create sustained local value. Section 4 presents a recommended path for the next phase of work that could further adapt these use cases, address ethical and legal issues, and co-develop guidance in partnership with local communities.

“There’s a big difference between equality and equity,” said now Vice President Kamala Harris as she ran for the presidency of the United States, and many millions watched and shared her video, which depicted one mountain climber who starts in a deep hole and another who starts much higher up.1 On the very day of his inauguration, with Vice President Harris at his side, President Joe Biden embraced the word “equity” in executive orders.2 He charged Susan Rice, director of his Domestic Policy Council, “with ensuring that the new administration embeds issues of racial equity into everything it does.”3 Federal agencies have been ordered to report on systemic barriers hampering access to benefits, services, and procurement opportunities. Immediately, critics responded with objections. Some charged the new administration with seeking to install discriminatory practices, favoring some racial and ethnic groups over others and attempting to inflame rather than heal racial division.4 Commentator Noah Rothman warned, “In practice, that looks less like ‘equity’ and more like ‘retribution.’”5 Others attacked the Biden administration’s approach for promoting a “spoils” system, more governmentally imposed constraints on freedom, and abandonment of equality.6 In contrast, key advisor Rice declared, “Advancing equity is a critical part of healing and of restoring unity in our nation.”7 Robert Kuttner, a commentator on the left, however, warned that change will come only with massive restructuring of the power relations across labor, capital, and government, as well as class-based coalitions against racism.8 The political debate reflects, but also clouds, work underway in educational and employment settings. Over the course of the last decade, “equity” initiatives have been organized in U.S. schools, in human resources departments at colleges, in corporations, in philanthropies, and in nonprofit organizations. Often, “equality” appears as the inadequate alternative. For example, a memorable cartoon circulating on the internet depicts two scenes of three children looking over a fence at a ball game. The first scene is labeled “Equality” and shows each child standing on a box with the tall child looking easily over the fence, a middle-size child able to just see over the fence, and a small child unable to see over the fence at all. The second scene, labeled “Equity,” depicts the tall child able to look over the fence while standing on the ground, the middle-size child able to see over the fence by standing on one box, and the small child, now standing on two stacked boxes, also able to see over the fence; all three are essentially getting the same view.9 The images provide vivid contrasts. They are invoked in discussions urging equity rather than equality. Individualized accommodations for students with disabilities represent one version of equity, already mandated and implemented by law under frameworks labeled in terms of antidiscrimination, inclusion, or equality. Whatever it is called, treating everyone the same, regardless of background factors, historical inequities, and personal situation, inspired Anatole France’s observation, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”10 Tailored treatment, rather than identical treatment, could proceed based on assessments of an individual’s needs and situation or instead based on diagnosis of systemic conditions of disadvantage and exclusion. But the contrast between the terms “equality” and “equity” does not illuminate real differences in potential visions of society. The terms “equality” and “equity” have become weapons in polarized political arguments rather than analytic tools. The political volley over words neglects and obscures decades of litigation, policy, and academic work in both American law and comparative law. The U.S. Constitution prohibits government denial of “equal protection” of the laws; state and federal statutes guard against discrimination on the basis of individual characteristics (e.g., race, gender, disability, age, sexual orientation or identity). The relevant state or federal authority does not use the term “equity.” In ongoing litigation challenges to any attention to race used by the admission processes of selective colleges and universities, the defense must proceed by reference to the Fourteenth Amendment’s guarantee of equal protection of the law as well as statutory protections against discrimination or exclusion on the basis of race.11 Dumping on “equality” is a poor strategy for any who support inclusion, affirmative action, and overcoming historic and ongoing barriers based on individuals’ group membership or situation. Attacking “equality” jeopardizes public support and surrenders intellectual and legal resources—including laws and judicial decisions—otherwise available for enforceable changes. Ceding the term “equality” to those who oppose any redress of historic and systemic disadvantages is especially shortsighted in a nation where courts have ruled that “classification” of individuals on the basis of certain personal characteristics (including race, gender, and religion) requires the most skeptical scrutiny. Further, tensions among current uses of “equity” hamper articulation of and steps toward potential initiatives at the levels of interpersonal, institutional, economic, and political action. This article seeks to clarify the meanings behind contemporary uses of the terms “equality” and “equity.” It also supports the conception, associated at times with equality and at times with equity, of laws and policies that are responsive to individual and structural differences in people’s circumstances. Lawyers, students, and policy makers work every day with the constitutional language of “equal protection of the laws,” as well as with statutes and regulations forbidding discrimination on the basis of protected traits, such as race and gender. Although these sources do not speak of “equity,” dismissing them would be a big mistake. Not only are these sources the law of the land: the terms and underlying conceptions of “equal protection” and “antidiscrimination” can be crucial tools for redeeming the promise of the Declaration of Independence and the Reconstruction Amendments—the promise of a nation where each person is secure and enjoys the same freedoms and opportunities as others, a nation that rejects status spelled by birth, race, or other happenstance. This is a promise worth fortifying, elaborating, and improving, not casting out or conceding away to those who resist continuing struggles in this historic spirit.