Benjamin Eidelson
· Professor of Law and Affiliate Professor of PhilosophyHarvard University · Philosophy
Active 2006–2026
About
Benjamin Eidelson is a Professor of Law and Affiliate Professor of Philosophy at Harvard University. He is a scholar of public law and issues at the intersection of law and philosophy, with research and teaching interests that include constitutional law, antidiscrimination law, statutory interpretation, administrative law, and legal theory. His first book, Discrimination and Disrespect, develops an account of wrongful discrimination rooted in the moral demands of respect for persons. Eidelson’s recent articles address topics such as antisemitism, anti-Zionism, the incompatibility of substantive canons and textualism, race-conscious admissions, and political accountability in the Roberts Court. He has contributed to broader audiences through writings in The New York Times, The Boston Globe, Slate, and other publications. Eidelson has litigated significant cases involving constitutional law, administrative law, and immigration, including developing a legal theory adopted by the Supreme Court in its decision invalidating the rescission of the DACA policy. During his private practice, he argued cases at all levels of the federal judiciary, including an appeal that reinstated a challenge to the Trump administration’s travel ban. Eidelson holds a B.A., summa cum laude, from Yale College, and a D.Phil. and B.Phil. in Philosophy from the University of Oxford, where he studied as a Rhodes Scholar and was awarded the Gilbert Ryle Prize. He earned his J.D. from Yale Law School, serving as editor-in-chief of the Yale Law Journal and as a student director of the Supreme Court Advocacy Clinic. He 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.
Research topics
- Political Science
- Law
- Sociology
- Law and economics
Selected publications
SSRN Electronic Journal · 2026-01-01
preprintOpen access1st authorCorrespondingAntisemitism, Anti-Zionism, and Title VI: A Guide for the Perplexed
SSRN Electronic Journal · 2025-01-01
preprintOpen access1st authorCorrespondingUNREFLECTIVE DISEQUILIBRIUM Race-Conscious Admissions After <i>SFFA</i>
American Journal of Law and Equality · 2024-01-01
articleOpen access1st authorCorrespondingThe Incompatibility of Substantive Canons and Textualism
SSRN Electronic Journal · 2023 · 3 citations
1st authorCorresponding- Political Science
- Political Science
- Law
Reasoned Explanation and Political Accountability in the Roberts Court
SSRN Electronic Journal · 2021 · 7 citations
1st authorCorresponding- Political Science
- Political Science
- Sociology
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.
Dimensional Disparate Treatment
SSRN Electronic Journal · 2021 · 7 citations
1st authorCorresponding- Political Science
- Political Science
- Law
Respect, Individualism, and Colorblindness
SSRN Electronic Journal · 2019-01-01 · 6 citations
articleOpen access1st authorCorrespondingEthics · 2018-03-16
article1st authorCorrespondingOxford University Press eBooks · 2015-11-01 · 1 citations
book-chapter1st authorCorrespondingAbstract This chapter considers the idea that people have a moral claim to be treated as individuals out of respect for their autonomy. That notion is often criticized as incompatible with the widespread and mundane use of statistical evidence in a host of contexts. But in fact, the chapter argues, respecting people as individuals is not a matter of forswearing the use of any sort of evidence about them. What respect for a person’s individuality requires is not that we exclude informative patterns about those who share some of her traits, but rather that we at least include certain kinds of information where it is reasonably available—information that manifests her own efforts, as an autonomous agent, to give shape to her life. The chapter offers an argument for the existence of such a respect-based duty of and then develops its contours.
Oxford University Press eBooks · 2015-11-01 · 1 citations
book-chapter1st authorCorrespondingAbstract This chapter considers discrimination that manifests a failure of recognition for the equal value or worth of persons as such. It suggests that respect for a person’s equal value is best understood as grounding a defeasible presumption of equal consideration. This presumption can be overridden, without disrespect, by genuinely relevant differences between persons’ claims to one’s consideration. But it is respect for people’s equal value that sets a baseline of equal concern and requires a special reason for weighing some people’s needs more heavily than others’. One paradigmatic form of wrongful discrimination stems from a failure to respect this presumption of equal regard. The chapter also introduces an important distinction between ordinary disrespect and contempt, understood as willful defiance of normative authority; this distinction helps to explain what is and is not morally similar about classic bigotry and implicit bias.
Frequent coauthors
- 1 shared
Deborah Hellman
- 1 shared
Matthew Stephenson
Flinders University
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