Benjamin Eidelson

Assistant Professor of Law

Biography

Benjamin Eidelson is an Assistant Professor of Law at Harvard Law School. Professor Eidelson’s writing focuses on the interplay of moral principles and legal rules, with a particular focus on contending conceptions of equality and respect. He works primarily in constitutional law, antidiscrimination law, and legal theory.

Professor Eidelson’s most recent project, forthcoming in the Yale Law Journal, examines the idea of “treating people as individuals” in equal protection doctrine. His first book, Discrimination and Disrespect, based on his doctoral dissertation in philosophy, develops an account of wrongful discrimination rooted in the moral demands of respect for persons. He has also written on the legality of age discrimination in allocating organs for transplant, the parallels between claims of religious freedom and sexual autonomy, and the relationship between the Senate filibuster and majority rule. His writing for broader audiences has appeared in The New York TimesSlate, and other publications.

Professor Eidelson graduated summa cum laude from Yale College and received his D.Phil. and B.Phil. in Philosophy from Oxford University, where he studied as a Rhodes Scholar and was awarded the Gilbert Ryle Prize. He then earned his J.D. from Yale Law School, where he served as the Editor-in-Chief of the Yale Law Journal and as a Student Director of the Supreme Court Advocacy Clinic. After law school, Professor Eidelson clerked for Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit and for Justice Elena Kagan of the U.S. Supreme Court. Before coming to Harvard, he worked as a litigator at Jenner & Block LLP, where his matters included challenges to the rescission of the Deferred Action for Childhood Arrivals (DACA) program, the State Department’s interpretation of President Trump’s “travel ban,” and the ban on military service by transgender individuals.

Areas of Interest

Benjamin Eidelson, Respect, Individualism, and Colorblindness, 129 Yale L.J. (forthcoming 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, 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, 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, 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.

Clerkships

Education History

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