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Benjamin Eidelson, Reasoned Explanation and Political Accountability in the Roberts Court, 130 Yale L.J. 1652 (2021).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
Type: Article
Abstract
In the past two years, the Supreme Court has invalidated two major executive-branch initiatives—the termination of the Deferred Action for Childhood Arrivals (DACA) policy and the addition of a citizenship question to the census—as arbitrary and capricious. Many have cast Chief Justice Roberts’s decisive votes and opinions in these cases as efforts to protect the Court’s public standing by skirting political controversy. Taken on their own terms, however, the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. And that use of arbitrariness review as a judicial backstop for political accountability is an important jurisprudential development in its own right. For decades, the Court has understood arbitrariness review mainly as a check against bureaucratic blunders, lawlessness, and political interference with agency expertise. But in the DACA and census cases, a narrow majority refashioned this form of review as a tool for forcing an administration to pay the appropriate political price for its discretionary choices. Through close and context-laden readings of these back-to-back opinions, I aim to surface the “accountability-forcing” form of arbitrariness review that they employ and to draw out its significance. Between the two cases, the Roberts-led majority identified three kinds of agency explanations that should be rejected or disfavored on political-accountability grounds: post hoc explanations, buck-passing explanations, and pretextual explanations. Standing alone, these new rules (and new justifications for old ones) have wide-ranging consequences. But if the shift toward an accountability-centric vision of arbitrariness review continues, it could also lead to renovations of several other administrative-law doctrines—including narrowing the carve-outs from judicial review, undermining the remedy of “remand without vacatur,” and empowering courts to discount agencies’ fallback justifications for their choices. After laying out the accountability-forcing turn in the Court’s recent cases and sketching its possible ramifications, I consider several grounds for doubt about its propriety and efficacy. Some of these objections, I conclude, have real force. Still, none debunks the core insight that I take to underlie Roberts’s approach: The reasoned explanation requirement can sometimes be deployed so as to promote not only rational administration, but democracy as well.
Benjamin Eidelson, Respect, Individualism, and Colorblindness, 129 Yale L.J. 1600 (2020).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
What principle underlies the Supreme Court’s “colorblind” or “anticlassification” approach to race and equal protection? According to the Court and many commentators, the answer lies in a kind of individualism—a conviction that people should be treated as individuals, not as instances of racial types. Yet the Court has said almost nothing about what it means to treat someone “as an individual.” This Article excavates the philosophical foundations of that idea. And in so doing, it offers a framework for understanding, and then evaluating, the Court’s assertions that the government fails to treat people as individuals when it classifies them by race. Rightly understood, the Article argues, treating people as individuals means showing respect for their individuality—a central facet of their moral standing as persons. To evaluate the claimed linkage between individualism and colorblindness, then, one first has to consider what respect for a person’s individuality involves. Drawing on the philosophical literatures on respect and autonomy, the Article offers an answer to that question: Treating someone as an individual requires taking due account of the information conveyed by her self-defining choices. But that answer entails that respect for a person’s individuality does not inherently require, or even favor, disregard of information carried by her race. The Article thus offers an internal critique of the Supreme Court’s avowedly “individualistic” approach to race and equal protection; it shows that the central moral argument for colorblindness rests on too shallow an account of what individualism itself demands. Building on that conclusion, the Article then turns to suggestions that racial distinctions—whatever their intrinsic moral status—are nonetheless stamped with social meanings that render them disrespectful of a person’s individuality. Even if such a symbolic norm might justify limiting integrative race-based state action, the Article contends, the recognition that no more basic moral wrong is at work should transform how the colorblindness project is carried out. Most fundamentally, that recognition should prompt the Court to enforce colorblindness, if it does, with regret rather than indignation. And most concretely, it should lead the Court to decide cases and write opinions in ways that avoid further entrenching respect conventions that operate as obstacles to valuable means of racial repair. In sum, with the Court poised to double-down on colorblindness in the years ahead, this Article surfaces the internal challenges that an intellectually serious form of the doctrine would need to address and charts the course that a more reflective colorblindness doctrine might take.
Benjamin Eidelson, Discrimination and Disrespect (2015).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Discrimination
,
Legal Theory & Philosophy
Type: Book
Abstract
Everyone agrees that discrimination can be a grave moral wrong. Yet this consensus masks fundamental disagreements about what makes something an act of discrimination, as well as precisely why (and hence when) such acts are wrong. In Discrimination and Disrespect, Benjamin Eidelson develops illuminating philosophical answers to these two questions. Discrimination is intrinsically wrong, Eidelson argues, when it manifests disrespect for the personhood of those it disfavours. He offers an original account of what such disrespect amounts to, explaining how attention to two different facets of moral personhood -- equality and autonomy -- ought to guide our judgments about wrongful discrimination. At the same time, however, Eidelson contends that many forms of discrimination are morally impeachable only on account of their contingent effects. The book concludes with a discussion of the moral arguments against racial profiling -- a practice that exemplifies how controversial forms of discrimination can be morally wrong without being intrinsically so.
Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. (forthcoming 2022).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
,
Civil Rights
,
Supreme Court of the United States
,
Labor Law
,
Employment Discrimination
Type: Article
Abstract
Last year’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Supreme Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the panoply of disparate-treatment questions for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions but transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of a disparate-treatment statute—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.
Benjamin Eidelson, Patterned Inequality, Compounding Injustice, and Algorithmic Prediction, 1 Am. J.L. & Equality 252 (2021).
Categories:
Discrimination & Civil Rights
,
Technology & Law
Sub-Categories:
Discrimination
Type: Article
Abstract
If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made.
Benjamin Eidelson, Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right, Balkinization (June 25, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Government Benefits
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Other
Benjamin Eidelson, A Way Out for the Court on DACA, N.Y. Times, Oct. 28, 2019.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Immigration Law
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: News
Benjamin Eidelson, Book Review, 128 Ethics 678 (2018)(reviewing Iyiola Solanke, Discrimination as Stigma: A Theory of Anti-discrimination Law (2017)).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Discrimination
,
Legal Theory & Philosophy
Type: Article
Benjamin Eidelson, Treating People as Individuals, in Philosophical Foundations of Discrimination Law (Deborah Hellman & Sophia Moreau eds., 2013).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Legal Theory & Philosophy
Type: Book
Abstract
Acts of discrimination are often criticized on the ground that they fail to "treat people as individuals." This paper develops an account of that moral requirement rooted in the philosophical literature on autonomy. To treat people as individuals, it argues, is not to eschew inductive generalization but rather to exhibit recognition respect for a particular morally salient property that persons possess. The paper explores just what that property of being "an individual" amounts to, and just how certain forms of discriminatory conduct may fail to respect it. The paper thus aims both to clarify an important strand in the moral case against certain forms of discrimination and, in so doing, to surface some neglected dimensions of what it means to respect the autonomy of others.
Benjamin Eidelson, Kidney Allocation and the Limits of the Age Discrimination Act, 122 Yale L.J. (2013).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Age Discrimination
,
Discrimination
,
Health Law & Policy
,
Elder Law
,
Bioethics
Type: Article
Abstract
In September 2012, the government-chartered body responsible for allocating cadaveric organs in the United States proposed a plan to make better use of the scarce supply of kidneys through "longevity matching." Critics have charged the plan with age discrimination, since it will deliberately allocate high-quality kidneys to younger candidates at the expense of older candidates with equal or greater medical need. These allegations raise significant legal and moral questions, and the debate they have sparked offers a revealing vantage point on the ways discrimination is conceptualized within and outside the law. This paper offers the first analysis of the legality of the proposal under the Age Discrimination Act of 1975, which bars age discrimination in federally funded programs. It then argues that the statute fails to speak to the central moral concerns about the plan, which have less to do with instrumental irrationality or arbitrariness than with the potential for discriminatory rationing to denigrate the equal worth of older people.
Benjamin Eidelson, The Majoritarian Filibuster, 122 Yale L.J. (2013).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying attention to such "majoritarian filibusters," this Note aims to disrupt the terms of the traditional debate and open up a new space for potential compromise. This Note reports the first empirical study of the majoritarian or countermajoritarian character of recent filibusters. These data reveal that, in half of the Congresses over the past two decades, successful filibustering minorities usually represented more people than the majorities they defeated. The choice whether to preserve the filibuster therefore cannot be reduced to a simple choice between majority rule and minority rights. After exploring the distribution of majoritarian and countermajoritarian filibusters along other dimensions of interest, this Note proposes that the majority-rule principle might be better served by simply reducing the sixty-vote cloture threshold- thereby shifting the balance toward majoritarian as opposed to countermajoritarian filibusters than by abolishing the filibuster altogether.