1. The phrase “liberal legalism” describes a system of law grounded in the principles of liberal philosophy; as used in feminist and critical-race theory it has become a term of opprobrium. See, e.g., Delgado, Richard, When a Story Is Just a Story: Does Voice Really Matter?, 76 Va. L. Rev. 95, 103 (1990)CrossRefGoogle Scholar (expressing frustration of critical-race theorists with premises of liberal legalism); MacKinnon, Catharine, Toward a Feminist Theory of the State 170 (1989)Google Scholar (“Including, but beyond, the bourgeois in liberal legalism, lies what is male about it”); West, Robin, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988)CrossRefGoogle Scholar (arguing that liberal legalism is “essentially and irretrievably masculine”).

2. Discussions of “difference” abound in feminist and critical-race theory, as well as in postmodern literature generally. See, e.g., Dailey, Anne, Feminism's Return to Liberalism, 102 Yale L.J. 1265 (1993)CrossRefGoogle Scholar (discussing importance of “difference” question in feminist jurisprudence); Foster, Sheila, Difference and Equality: A Critical Assessment of the Concept of “Diversity,” 1993 Wis. L. Rev. 105Google Scholar [hereinafter Foster, , Difference and Equality]Google Scholar; Harris, Angela P., Foreword: The Jurisprudence of Reconstruction, 82 Calif. L. Rev. 741 (1994)CrossRefGoogle Scholar; Young, Iris Marion, Polity and Group Difference, 99 Ethics 250 (1989)CrossRefGoogle Scholar; Young, Iris Marion, The Ideal of Community and the Politics of Difference, in Feminism/Postmodernism 300Google Scholar (Nicholson, Linda J. ed.) (1990)Google Scholar [hereinafter Young, , The Ideal of CommunityGoogle Scholar]; Minow, Martha, Foreword: Justice Engendered, 101 Harv. L. Rev. 10 (1987)Google Scholar; Minow, Martha, When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference, 22 Harv. C R C L L Rev. 111 (1987)Google Scholar; Minow, Martha, Making All the Difference: Inclusion, Exclusion, and American Law (1990)Google Scholar [hereinafter Minow, , Making all the DifferenceGoogle Scholar); Iris Young, Marion, Justice and the Politics of Difference (1990)Google Scholar [hereinafter Young, , Justice and the Politics of Difference).Google Scholar

3. Young, , The Ideal of Community, supra note 2, at 307.Google ScholarSee also Minow, , Making All the Difference, supra note 2, at 377Google Scholar (“Rights analysis … fails to supply a basis for remaking … institutions to accommodate difference. Integrated into institutions not designed with them in mind, formerly marginalized people may simply become newly marginalized or stigmatized”). As I discuss below, most critics (including Young) attack a specific type of liberalism, which celebrates individual autonomy and agency and advocates their maximization via a legal system grounded in individual rights. Thus, not all forms of liberalism are subject to all of the criticisms made here. See infra note 13 and accompanying text.

4. See, e.g., Littleton, Christine A., Reconstructing Sexual Equality, 75 Cal. L. Rev. 1279, 1282 (1987)CrossRefGoogle Scholar (“As a concept, equality suffers from a ‘mathematical fallacy’—that is, the view that only things that are the same can ever be equal”); Minow, , Making all the Difference, supra note 2, at 149Google Scholar (“Both the historical and heuristic versions of [liberal] social contract theory claim to be inclusive, participatory, and egalitarian, yet both replicate the process of exclusion and subordination that preserves the two tracks of legal treatment”); id. (noting that “The U.S. Constitution [is based on liberal principles and] is a document produced through an indisputably exclusionary process”); Young, , Justice and the Politics of Difference, supra note 2, at 164–66Google Scholar (claiming that “politics of difference … promotes a notion of group solidarity against the individualism of liberal humanism,” which is characterized by an “assimilationist ideal” that sets facially neutral “norms” that in fact disadvantage oppressed groups).

5. Harris, , Jurisprudence of Reconstruction, supra note 2, at 761Google Scholar (critical-race theorists advance an idea of “equality based not on sameness but on difference”; id. at 770 (critical-race theory attempts to refigure equality in ways beyond sameness and difference); Minow, , When Difference Has Its Home, supra note 2, at 113Google Scholar (explaining main goal of article is to argue that “categorical approaches” to law, which attribute “difference” to different people, undermine commitments to equality); Minow, , Making All the Difference, supra note 2, at 50, 74–75Google Scholar (contesting idea of equality as sameness); Young, , Polity and Group Difference, supra note 2, at 250–51.Google Scholar

6. Galston, William, Liberal Purposes: Goods, Virtues and Diversity in the Liberal State 4 (1991).Google ScholarSee also Ackerman, Bruce, Social Justice in the Liberal State 18 (1980)Google Scholar (advocating “a liberal conception of equality that is compatible with a social order rich in diversity of talents, personal ideals, and forms of community”); Dworkin, Ronald, Taking Rights Seriously 272–73 (1977)Google Scholar (defining “liberal conception of equality” as mandating that government “must not constrain liberty on the ground that one citizen's conception of the good life is nobler or superior to another's”).

7. Minow, , Making All the Difference, supra note 2, at 227–390Google Scholar (defending her vision of “rights in relationship”).

8. Foster, , Difference and Equality, supra note 2, at 156.Google Scholar

9. See, e.g., Brooks, Roy L. and Newborn, Mary Jo, Critical Race Theory and Classical-Liberal Civil Rights Scholarship: A Distinction Without a Difference?, 82 Cal. L. Rev. 787, 804–44 (1994).CrossRefGoogle Scholar

10. Young, , Justice and the Politics of Difference, supra note 2, at 158.Google Scholar

11. See, e.g., Foster, , Difference and Equality, supra note 2, at 110–11Google Scholar (examining concept of diversity under “hybrid equality paradigm” and concluding that “[t]o be useful in achieving the goal of equality, a diversity rationale should recognize those differences that have been constructed into a basis for, and have resulted in, systemic exclusion and disadvantage for individuals possessing those differences.”); id. at 147–61 (affirming importance of equality goal and advocating idea that explicit recognition of socially relevant differences is necessary to achieve it); Hutchinson, Allan C., Identity Crisis: The Politics of Interpretation, 26 New Eng. L. Rev. 1173, 1192 (1992)Google Scholar (on postmodern view of difference, “the subject becomes a site for the constant and continuing struggle to take on an identity that is conducive to a truly egalitarian society”); Id. at 1208 (“The triumph of a truly democratic politics will only occur when the author-monarch is finally dead and a polity of truly equal readers and writers is established and lived”); Young, , Polity and Group Difference, supra note 2, at 251Google Scholar (“the inclusion and participation of everyone in public discussion and decision making requires mechanisms for group representation”); Young, , Justice and the Politics of Difference, supra note 2, at 173Google Scholar (assuming that “[a] goal of social justice … is social equality,” which “refers primarily to the full participation and inclusion of everyone in a society's major institutions, and the socially supported substantive opportunity for all to develop and exercise their capacities and realize their choices”).

12. The term “diversity” is also widely employed to refer to efforts by private and public entities to hire women and members of racial and ethnic minorities. “Diversity” is thus a description of a particular justification for affirmative action in hiring, a justification that focuses on the benefits to the hiring organizations and/or society at large of including within these organizations members of previously unrepresented, or underrepresented groups. This political meaning of diversity should be distinguished both from the theoretical claims of liberalism outlined above, and from the discussion below of difference theory. Indeed, the diversity rationale for affirmative action is parasitic upon a society's prior decisions as to what difference is and which differences do, or should, matter. See, e.g., Foster, , Difference and Equality, supra note 2, at 109Google Scholar (“Diversity has been used as a code word for a variety of differences”); id. at 111 (“the current concept of diversity is ‘empty’ because it lacks a mediating principle. By treating all differences the same, it ignores the ‘salience’ of certain differences in this society by extracting differences from their sociopolitical contexts”).

13. See, e.g., Ackerman, , supra note 6, at 182, 196Google Scholar (explaining importance of autonomy in liberal theory); id. at 4–7 (outlining conception of rationality that forms basis for author's own brand of liberalism); Fallon, Richard H. Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875, 876 (1994)CrossRefGoogle Scholar (“A view tracing to Kant maintains that other values possess their worth only because rational, autonomous agents find them worth pursuing.”); Rawls, John, A Theory of Justice 515–16 (1971)Google Scholar (“Following the Kantian interpretation of justice as fairness, we can say that by acting from these principles [of justice] persons are acting autonomously, they are acting from principles that they would acknowledge under conditions that best express their nature as free and rational beings…. Thus, moral education is education for autonomy”).

14. See, e.g., Ackerman, , supra note 6, at 54–55Google Scholar (articulating requirement that liberal principle of neutrality “does not distinguish the merits of competing conceptions of the Good”); Galston, , supra note 6, at 10Google Scholar (“the liberal conception of the good… allows for a wide though not wholly unconstrained pluralism among ways of life. It assumes that individuals have special (though not wholly unerring) insight into their own good. And it is consistent with the minimization of public restraints on individuals”); Rawls, , supra note 13, at 92–93Google Scholar (“[A] person's good is determined by what is for him the most rational long-term plan of life…. To put it briefly, the good is the satisfaction of rational desire”).

15. See, e.g., Dworkin, Gerald, The Theory and Practice of Autonomy 31 (1988)Google Scholar (“Moral respect is owed to all because all have the capacity for defining them selves”).

16. See, e.g., Mill, John Stuart, On Liberty: Annotated Text, Sources, and Background Criticism 65Google Scholar (Spitz, David ed. 1975Google Scholar) (“Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable”); Nozick, Robert, Anarchy, State, and Utopia 308–09 (1974)Google Scholar (discussing extensive diversity of human beings); Sen, Amartya, Inequality Reexamined 19–21 (1992)Google Scholar (discussing impact of “extensive human diversity” on equality theory).

17. See, e.g., Rosenfeld, Michel, Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal 74 Cal. L. Rev. 1687, 1702CrossRefGoogle Scholar (“In its broadest terms, then, equalities must be constructed so that those who are different are not regarded as inferiors, and conforming identities are not imposed upon them”).

18. See, e.g., Fallon, , supra note 13, at 887–88Google Scholar (defending conception of descriptive autonomy and noting that “the self, though situated and socially constituted, remains capable of appreciating her situated condition, of assessing and criticizing her assumptions and values, and of revising her goals and commitments…. The self is a creature in and of the world, but one capable of at least partially transforming herself through thought, criticism, and self-interpretation”).

19. See Sen, , supra note 16, at 12–10Google Scholar (noting that “every normative theory of social arrangement that has at all stood the test of time seems to demand equality of something—something that is regarded as particularly important in that theory,” and thus that “the battle is not, in an important sense, about ‘why equality?’, but about ‘equality of what?’”).

20. See, e.g., id. at 22 (“libertarian demands for liberty typically include important features of ‘equal liberty,’ e.g., the insistence on equal immunity from interference by others”).

21. Dworkin, Ronald, What Is Equality? Part I: Equality of Welfare, and What Is Equality? Part 2: Equality of Resources, 10 Pihl & Pun. Aff. (1981).Google Scholar

22. Rawls, , supra note 13.Google Scholar

23. Amy Gutmann may be drawing this distinction between liberalism's equality assumptions, which she defines as the function of “describing people as equal beings…,” and egalitarianism, which she defines as the “justifying a more equal distribution of goods, services, and opportunities among those people.” Gutmann, Amy, Liberal Equality 2 (1980).Google Scholar

24. Sen, Amartya, supra note 16, at 12–30Google Scholar, discusses these two ideas, noting that “[t]wo central issues for ethical analysis of equality are: (1) Why equality? (2) Equality of What?” Discussing the work of John Rawls, Ronald Dworkin notes a similar difference between Rawls's two conceptions of equality, which consist of claims with respect to the distribution of goods, and claims to equal concern and respect for all individuals, Dworkin, , supra note 6, at 180–82.Google Scholar

25. See, e.g., Ackerman, , supra note 6, at 18Google Scholar (“Certain forms of equal treatment—say, formal equality in the administration of justice—have been central to the liberal tradition”). For a contemporary defense of this idea, see generally Nozick, , supra note 10.Google Scholar

26. Dworkin, , supra note 6, at 180, 272–78.Google Scholar

27. Littleton, , supra note 4, at 1284–85.Google Scholar

28. Kay, Herma Hill, Equality and Difference: The Case of Pregnancy. 1 Berkeley Women's L.J.I., 26–27 (1985).Google Scholar

29. Dworkin, , supra note 6, at 180–82.Google Scholar

30. Other forms of liberalism—e.g., utilitarian ones—demonstrate that egalitarian treatment does not require descriptive sameness at its base. A liberal utilitarian might simply assert that equal respect for the rights and freedoms of individuals—the idea that each counts for one, and no more than one—maximizes utility, however that function is defined, (But why does it do so? Why does treating people equally maximize utility? Because humans generally have a preference to be treated equally? If so, is that in itself, or is the capacity to experience happiness or suffering, an indication of some fundamental sameness? Since a “yes” answer to that question would simply fold utilitarianism into the general argument of this essay, while a “no” answer leaves the argument untouched, I will put aside utilitarianism for the moment. But see infra, text accompanying note 150.

31. See, e.g., Kay, , supra note 28, at 22Google Scholar (proposing “episodic analysis” that would “take account of biological reproductive sex differences and treat them as legally significant only when they are being utilized for reproductive purposes.”); id. at 27 (“in order to maintain the woman's equality of opportunity during her pregnancy, we should modify as far as reasonably possible those aspects of her work where her job performance is adversely affected by the pregnancy. Unless we do so, she will experience employment disadvantages arising from her reproductive activity that arc not encountered by her male co-worker”); id. (episodic analysis “will enable the law to treat women differently than men during a limited period when their needs may be greater than those of men as a way of ensuring that women will he equal to men with respect to their overall employment opportunities”); Littleton, , supra note 4, at 1283Google Scholar (arguing that “equality can foe … reconstructed as a means of challenging, rather than legitimating, social institutions created from the phalloccntric perspective.”); id. at 1281 (advancing notion of equality as acceptance and averring that “[t]o achieve this form of sexual equality, male and female ‘differences’ must be costless relative to each other”).

32. Subdefincd as rationality, capacity for moral personality, agency, etc.

33. Minow, , Making All the Difference, supra note 2, at 146–47.Google Scholar

34. See, e.g., Bell, Derrick, Foreword: The Civil Rights Chronicles, 99 Harv. L Rev. 4, 6–8 (1985)Google Scholar (discussing contradiction between America's ideal of equality and its reality of racism, and arging that “[m]uch of what is called the law of civil rights … has a mythological or fairy-tale quality”); Harris, , Jurisprudence of Reconstruction, supra note 2, at 754Google Scholar (critical-race theory “puts law's supposed objectivity and neutrality on trial, arguing that what looks like race-neutrality on the surface has a deeper structure that reflects white privilege.”); id. at 759 (“History has shown that racism can coexist happily with formal commitments to objectivity, neutrality, and colorblindness”); MacKinnon, Catharine, Toward a Feminist Theory of the State 220–21 (1989)Google Scholar (liberal conception of equality as employed in sex discrimination law conceals “the substantive way in which man has become the measure of all things); id. at 224 (“Men's physiology defines most sports, their health needs largely define insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships—defines history, their image defines god, and their genitals define sex. These are the standards that are presented as gender neutral”); Young, , Justice and the Politics of Difference, supra note 2, at 108–09Google Scholar (arguing that liberal quality theory has effect of excluding those labeled “different”); id. at 173 (“policies that are universally formulated and thus blind to differences of race, culture, gender, age, or disability often peqietuate rather than undermine oppression”).

35. See, e.g., Minow, , Making All the Difference, supra note 2, at 146–49Google Scholar; Young, , Justice and the Politics of Difference, supra note 2, at 157Google Scholar (“Enlightenment ideals of liberty and political equality did and do inspire movements against oppression and domination, whose success has created social values and institutions we would not want to lose”).

36. See, e.g., Minow, , Making All the Difference, supra note 2. at 152Google Scholar (“The [liberal] social contract approach has been deeply exclusionary”); Young, , Justice and the Politics of Difference, supra note 2, at 173Google Scholar (“Policies that are universally formulated and thus blind to differences of race, culture, gender, age, or disability often perpetuate rather than undermine oppression”).

37. Communitarians have been especially keen on this attack. See generally Sandel, Michael, Liberalism and the Limits of Justice (1982).Google Scholar

38. See generally Sherry, Suzanna, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543 (1986)CrossRefGoogle Scholar (citing Carol Gilligan and arguing for inclusion of women's “different voice” into law); West, supra note 1 (arguing that law must incorporate women's focus on connectedness as well as men's concern with individual autonomy).

39. Gilligan, Carol, In a Different Voice (1980).Google Scholar

40. For relational feminist discussions that use Gilligan's ideas to criticize liberal law, see, e.g., West, , supra note 1, at 2–4, 14–26, 42 (1988)Google Scholar (defending the “connection thesis”—that women differ essentially from men because they are materially connected to other human lives through the maternal experience and therefore value connection and nurturing over autonomy); Sherry, , supra note 38, at 543, 579–84Google Scholar (hypothesizing that women's concerns about connection, subjectivity, and responsibility for others accord well with communitarian legal structures while men's emphasis on autonomy, objectivity, and rights translates into liberalism). For a similar thesis in the context of race relations, see, e.g., Townsend, Jacinda T., Reclaiming Self-Determination: A Call for Intraracial Adoption, 2 Duke J. Gender L. & Pol'y 173, 181 (1995)Google Scholar (“The Black community maintains its own set of family values, including collective responsibility, self-determination, and cooperative economics. These values help define a communitarian Black society that can be contrasted with an individual rights based dominant society”).

Catharine MacKinnon, a critic of relational feminism, might nevertheless be placed in this camp as she also appears to assume that although liberal autonomy and the liberal state work well for men, they oppress women; see, e.g., MacKinnon, , supra note 34, at 157–70, 237–49 (1989)Google Scholar (attacking the liberal state and liberal theory as oppressive of women). Unlike the relational feminists, however, MacKinnon refuses to move beyond the critique of liberalism to define a positive vision of “woman's point of view”; that is, to paint a picture of what a postdomination world would look like. See, e.g., MacKinnon, Catharine, Feminism Unmodified 45 (1987)Google Scholar (“Take your foot off our necks, then we will hear in what tongue women speak”). Like relational feminists, MacKinnon has been attacked for “gender essentialism”; see generally Harris, Angela, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990)CrossRefGoogle Scholar (charging both MacKinnon and West with essentialism).

41. See generally Sherry, , supra note 38Google Scholar; West, , supra note 1.Google Scholar

42. See, e.g., Sandel, , supra note 37Google Scholar (pointing out flaws in Rawlsian liberalism and arguing for a communitarian vision of state). Some liberals have recently argued that liberalism and communitarianism are not essentially opposed; see, e.g., Ackerman, Bruce, We the People 1: Foundations (1991)Google Scholar; Galston, William, Liberal Purposes (1991).Google Scholar

43. The term “postmodern” can mean many things, and I use it somewhat loosely in this article. Angela Harris has described the use of this term in jurisprudential literature: “[Postmodernism] suggest[s] that what has been presented in our social-political and our intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as truth itself.” Harris, , supra note 2, at 748.Google Scholar

44. See, e.g., Hutchinson, , supra note 11, at 1184–85Google Scholar (“Rather than think of the subject as a unitary and sovereign subject whose self-directed vocation is to bring the world to heel through the exacting discipline of rational inquiry, postmodernism interrogates the whole idea of autonomous subjectivity and abstract reason; it places them in a constantly contingent condition of provisionality”); id. at 1192 (“postmodernists suggest that the traditional notion of authenticity—‘to thine own self be true’—is an immediate patient for postmodern surgery”); Young, , The Ideal of Community, supra note 2, at 300, 310Google Scholar (“The idea of the self as a unified subject of desire and need and an origin of assertion and action has been powerfully called into question by contemporary philosophers”); id. at 308–09 (criticizing liberal conception of moral autonomy).

45. See, e.g., Butler, Judith, Gender Trouble, Feminist Theory, and Psychoanalytic Discourse, in Feminism/Postmodernism 324, 338–39Google Scholar (Nicholson, Linda J. ed., 1990Google Scholar) (“Inasmuch as the construct of women presupposes a specificity and coherence that differentiates it from that of men, the categories of gender appear as an unprohlematic point of departure for feminist politics. But if … ‘sex’ itself is a category produced in the interests of the heterosexual contract, or if we consider Foucault's suggestion that ‘sex’ designates an artificial unity that works to maintain and amplify the regulation of sexuality within the reproductive domain, then it seems that gender coherence operates in much the same way, not as a ground of politics but as its effect”).

46. See, e.g., Williams, Joan, Deconstructing Gender, 87 Mich. L. Rev. 797 (1989)CrossRefGoogle Scholar. For criticisms of feminist essentialism, see generally Harris, , supra note 40Google Scholar; Spelman, Elizabeth, Inessential Woman (1988).Google Scholar Criticism of relational feminist essentialism comes not only from postmodern scholars but also from liberal and radical feminists. See, e.g., Hampton, Jean, Feminist Contrnclarianism, in A Mind of Ones Own: Feminist Essays on Reason and Objectivity 227, 231 (1993)Google Scholar (In the results of Gilligan's research showing that boys are more autonomous while girls are more caring, “I hear the voice of a child who is preparing to be a member of a dominating group and the voice of another who is preparing to be a member of the group that is dominated”); MacKinnon, , supra note 40, at 38–39Google Scholar (criticizing relational feminists for valuing as essentially feminine characteristics, such as nurturing and care, that are the result of male domination).

47. See, e.g., Harris, , supra note 40, at 585Google Scholar (arguing that result of “gender essentialism” is “not only that some voices are silenced in order to privilege others … but that the voices that are silenced turn out to be the same voices silenced by the mainstream legal voice of We the People—among them, the voices of black women”).

48. See, e.g., Minow, , Making All the Difference, supra note 2, at 3–4Google Scholar (raising worries about the process of categorization that results in the conclusion of difference).

49. Young, , The Ideal of Community, supra note 2, at 307.Google Scholar

50. See, e.g., Foster, , Difference and Equality, supra note 2, at 111Google Scholar (“To be useful in achieving the goal of equality, a diversity rationale should recognize those differences that have been constructed into a basis for, and have resulted in, systemic exclusion and disadvantage for individuals possessing those differences”); Halley, Janet E., Sexual Orientation and the Politics of Biology: A Critique of the Argument From Immutability, 46 Stan. L. Rev. 503, 505 (1994)CrossRefGoogle Scholar (“The postmodern critique of liberal explanations of the self posits that culture, not human nature, gives humans their sexual orientations”); Harris, , supra note 2, at 762Google Scholar (discussing the postmodern “problem of the subject” and claiming that “[t]he language of race creates, maintains, and destroys subjects, both inside and outside the law”); id. at 784 (“Racial communities, like other human communities, are the products of invention, not discovery”); Hutchinson, , supra note 11, at 1192Google Scholar (“The subject is a cultural creation, not a biological given”); Hutchinson, , Inessentially Speaking (Is There Politics After Postmodernism?), 89 Mich. L. Rev. 1549, 1552 (1991)CrossRefGoogle Scholar (book review of Martha Minow, Making All the Difference) (“The postmodern temper has no eternal truth to offer and no immutable knowledge to dispense; it accepts the historically situated and socially constructed character of truths and knowledges”); id. at 1564 (“Differences are culturally imposed and socially policed”); Minow, , Making All the Difference, supra note 2, at 19–23Google Scholar (discussing social construction of difference in context of the “difference dilemmas” it produces).

51. See, e.g., Butler, , supra note 45, at 326Google Scholar (construction of the autonomous subject requires domination and oppression); Hutchinson, , supra note 50, at 1563Google Scholar (“Domination has been perpetuated and rationalized both by embracing difference (superiority of men over women and white-skinned people over black-skinned people) and by eschewing difference (treatment of women as men and African Americans as white Europeans). Tliese are the advantages that have made the establishment of power overwhelmingly white and male”); Minow, , Making All the Difference, supra note 2, at 50Google Scholar (criticizing linkage in law between “difference” and “deviance”); id. at 53 (“Assertions of a difference as ‘the truth’ may indeed obscure the power of the person attributing the difference while excluding important competing perspectives. Difference is a clue to the social arrangements that make some people less accepted and less integrated while expressing the needs and interests of others who constitute the presumed model”).

52. Harris, , supra note 2, at 762Google Scholar (“The language of race creates, maintains, and destroys subjects, both inside and outside the law”); Hutchinson, , supra note 50, at 1554Google Scholar (“The process of labeling and naming is particularly fraught with dangers when it concerns people. To categorize is to choose, and, in so doing, there is no escaping the responsibility of judgment or its context of power”); Minow, , Making All the Difference, supra note 2, at 174–77Google Scholar (identifying labeling theory as antecedent to her social relations approach, and explaining that “labeling theory studies tlie process by which an audience or community identifies some people as deviants. That very pattern of identification has consequences for the labeled person which are difficult to escape. Those consequences include recurring patterns of exclusion and deviant behavior. Labeling theory thus treats difference as an idea developed by some people to describe others and to attribute meaning to others' behavior”).

53. See, e.g., Hutchinson, , supra note 50, at 1565Google Scholar (“Although people are never not in a local context, they are never in a context that is not open to contingent revision”); id. at 1570 (“While persons are not reducible to their autobiographies, they never fully escape them; they forge their identities through the existential tension between confronting or confounding their autobiographies”); Hutchinson, , supra note 11, at 1187Google Scholar (“Embedded in a constitute discourse of power, readers are also disciplined by the extant protocols of power — they are subjects in transition”); Minow, , Making all the Difference, supra note 2, at 53Google Scholar (“There is no single, superior perspective for judging questions of difference. No perspective asserted to produce ‘the truth’ is without a situated perspective, because any statement is made by a person who has a perspective”).

54. See, e.g., Hutchinson, , supra note 11, at 1209Google Scholar (“In the face of the problematized subject, postmodernism does not capitulate to or retreat from the task of struggling towards an enhanced social solidarity and experience of justice. The hope is to empower subjects by making them individually aware of their capacity for self (re)creation and collectively responsible for establishing a mode of social life that multiplies the opportunities for transformative action”); Minow, , Making All the Difference, supra note 2, at 53Google Scholar (“Difference is a clue to the social arrangements that make some people less accepted and less integrated while expressing the needs and interests of others who constitute the presumed model. And social arrangements can be changed. Arrangements that assign the burden of “differences” to some people while making others comfortable are historical artifacts. Maintaining these historical patterns embedded in the status quo is not neutral and cannot be justified by the claim that everyone has freely chosen to do so”).

55. See, e.g., notes 4–5 and accompanying text.

56. See, e.g., note 11 and accompanying text.

57. See Hutchinson, , supra note 50, at 1550–51Google Scholar (reviewing Professor Minow's book Making All the Difference and noting that “In the jurisprudential corner of postmodern scholarship, the work of Martha Minow deserves especial attention. Infused with a postmodern perspective, [Minow's] writing stands at the frontiers of modern legal thinking in its efforts to reject and move beyond the modernist project of jurisprudence”).

58. Supra note 2. Minow has also explained her view of difference, and her proposals to cure the “difference dilemma,” in her other work. See generally Minow, , When Difference Has Its Home, supra note 2Google Scholar; Minow, , Foreuxtnl: Justice Engendered, supra note 2.Google Scholar

59. Minow, . Making All the Difference, supra note 2, at 50–74.Google Scholar

60. Id. at 81–83 (discussing case of Rowley v. Board of Educ, 483 F. Supp. 528 (S.D.N.Y. 1980)Google Scholar, aff'd F.2d 945 (2d Cir. 1980); rev'd 458 U.S. 176 (1982).Google Scholar involving dispute between Rowleys and Board of Education over whether federal law entitled the Rowleys' hearing-impaired child, Amy, to a sign-language interpreter in all her classes, or whether the school's educational plan, which supplemented Amy's experience in “mainstream” classroom with special tutoring, satisfied the law). Minow notes, id. at 82, that “[b]oth sides [in the case] assumed that the problem was Amy's: because she was different from other students, the solution must focus on her. Both sides deployed the unstated norm of the hearing student who receives educational input from a teacher, rather than imagining a different norm around which the entire classroom might be constructed.”

61. Id. at 51.

62. Id.See also, Young, , Justice and the Politics of Difference, supra note 2, at 169Google Scholar (“The attempt to reduce all persons to the unity of a common measure constructs as deviant those whose attributes differ from the group-specific attributes implicitly presumed in the norm. The drive to unify the particularity and multiplicity of practices … turns difference into exclusion”).

63. Minow, , Making All the Difference, supra note 2, at 31–17.Google Scholar

64. Id. at 51–52 (describing how U.S. constitutional equality norms “[make] the recognition of differences a basis for denying equal treatment”).

65. Id.

66. Id. at 60–61.

67. Id. at 61.

68. Id.

69. Id. at 71.

70. Id.

71. Id. at 50. See also Minow, , Group Homes for the Mentally Retarded, supra note 2, at 113Google Scholar (“Categorical approaches”—attributing difference to different people—undermine commitments to equality).

72. Id.

73. Id. at 51.

74. Id. at 53.

75. Id.

76. Id. at 20, 25, 27, 36.

77. Id.

78. See generally id.

79. See, e.g., Minow, , When Difference Has Its Home, supra note 2, at 128Google Scholar (“Categories and attributions of difference can perpetuate or increase disparities of power between different groups. Attributions of difference should be sustained only if they do not express or confirm the distribution of power in ways that harm the less powerful and benefit the more powerful”).

80. Minow, , Making All the Difference, supra note 2, at 81–81.Google Scholar

81. See, e.g., Minow, id., supra note 2, at 147Google Scholar (“Rights analysis offers release from hierarchy and subordination to those who can match the picture of the abstract, autonomous individual presupposed by the theory of rights. For those who do not match that picture, application of rights analysis can he not only unresponsive but also punitive”).

82. Id. at 146.

83. Id. at 146–47.

84. See supra, text accompanying notes 59–70.

85. See, e.g., Minow, , Making All the Difference, supra note 2, at 152Google Scholar (“Pretense of universal, inclusive norms in the public sphere obscures the power of assigned differences in the private sphere”); id. at 223 (“The relational challenge suggests that [the limits set on responsibilities by rights analysis] reflect a particular perspective not because it is correct but because it expresses the worldview of those who have had sufficient power to shape prevailing social institutions”); id. at 217 (feminist work has contributed to the relational project by “recasting issues of ‘difference’ as problems of domination or subordination in order to disclose the social relationships of power within which difference is named and enforced”); id. at 224 (social relations approach sees “[d]ifferences that yield social distance and exclusion … as the selfserving expressions of the more powerful”); id. at 239 (“Those who win a given struggle for control may have better access to the means of producing knowledge, such as mass media and schools. Such control may even shape the terms of access so that exclusions of other points of view appear neutral, based on merit or on other standards endorsed even by those who remain excluded”).

86. E.g., id. at 155 (criticizing as inevitably situated the liberal reliance on notion of “autonomous, able-bodied” person); id. at 150 (“the heuristic device of the social contract presumes to address only autonomous, independent individuals”); id. at 216 (charging that rights analysts applies only to those who are, or can analogize themselves to, independent persons); id. at 147 (“Rights analysis offers release from hierarchy and subordination to those who can match the picture of the abstract, autonomous individual presupposed by the theory of rights. For those who do not match that picture, application of rights analysis can be not only unresponsive but also punitive”).

87. See, e.g., id. at 152 (“Despite the implied aspiration to universal inclusion, the social contract approach has been deeply exclusionary”); id. at 153 (“The presentation of a type of human being as though it described all human beings risks excluding any who do not fit or treating such misfits as deviant”); id. at 154 (“Rawls's difference principle preserves too much of the concept of the abstract individual—a concept that claims but fails to secure universality—to respond fully to issues of difference”); id. at 155–56 (“The natural rights tradition also partakes of the assumptions of the autonomous and abstract individual and excludes or subordinates any who fail to meet these assumptions”); id. at 156 (“The premise of a basic human nature, found in the abstract individual capable of reason, undergirds [natural law] theory and risks excluding any who do not meet it. Theories of natural law locate the justification for universal rights in human reason or cognition. This focus on reason makes problematic any persons who do not manifest to the satisfaction of those in charge the requisite capacities for rational thought,” and offering children and the mentally disabled as examples of such excluded persons).

88. Eg., id. at 146 (“The ‘sameness’ between people emphasized by rights analysis challenges special accommodations made for disabled people, women, and others historically treated as different”); id. at 152 (“All persons are equal because of this fundamental sameness—yet this sameness seems to be the emptiness left when we are each sheared of all that makes us different”); id. at 223 (“Equating sameness with equality, rights analysis offers a kind of certainty and a set of limits: equal treatment, yes, but limited to a comparison with the other group”); see also Young, , Justice and the Politics of Difference, supra note 2, at 171Google Scholar (“In general, then, a relational understanding of group difference rejects exclusion”).

89. Id. at 152.

90. Supra text accompanying notes 14–33.

91. See, e.g., Minow, , Making All the Difference, supra note 2, at 155Google Scholar (criticizing rights theory for its “assumption of an autonomous, able-bodied person”); id. at 150–51 (“The heuristic device of the social contract presumes to address only autonomous, independent individuals who can separate themselves from others and enter freely, unencumbered, into an agreement about how to conduct private and public affairs. … A very different design for … conceiving of the foundations of a society would be necessary in order to include directly those who within contemporary society seem disabled and those historically treated as incompetent and incapable of participating in the formation of a rational consensus”).

Other theorists have posited concepts of autonomy Uiat add to rational choice-making power the existence of a sufficient range of options and of the ability to act on one's choices. See, e.g., Fallon, , supra note 13, at 886Google Scholar (offering modified Razian vision of autonomy and claiming that “descriptive autonomy depends on at least four elements that constitute the “conditions of autonomy”: (1) critical and self-critical ability; (2) competence to act; (3) sufficient options; and (4) independence of coercion and manipulation”). Fallon claims that under this conception of autonomy, “[a] physically helpless person, such as a quadriplegic, is not autonomous in important respects.” Id. at 888. Once again, this view is vulnerable to the charge leveled against Minow—that it rests upon far too sparse a conception of what it means to “act.”

92. Minow, , Making All the Difference, supra note 2, at 152.Google Scholar

93. At times Minow treats children and the mentally disabled as groups excluded by liberalism. But this is dramatically overreaching. As Minow herself concedes, liberal theory acknowledges the personhood of children as future autonomous agents. Id. at 156. And, unless one defines “mental disability” in such a way that it refers to extremely severe psychological or cognitive deficits, it is far too simplistic to assume that all mentally disabled persons lack rationality or the capacity to make autonomous choices about their lives.

94. Or perhaps the “right” is grounded in a very basic principle of “sameness”—that of species membership. But such a principle can only serve as a very weak justification for legal rights. For why ought species membership to justify such rights? The readiest response is phrased in terms of some other quality dial constitutes the real justification for the right—that the human species shares the capacity for rationality, autonomy, empathy, moral personality, and so on. This takes the argument back to square one.

95. Hayman, Robert L. Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv. L. Rev. 1201 (1990)CrossRefGoogle Scholar (criticizing autonomy- and rationality-based presumptions employed in judicial decisions about parenting abilities of mentally handicapped persons, and arguing that relational abilities of such persons should form the basis for a new legal standard of evaluation of parenting abilities).

96. Nevertheless, she ultimately tries to go this route, and I evaluate her attempt in the next section, infra, text accompanying notes 99–116.

97. And a non-sameness-based justification of equality seems entirely unattractive, for reasons I will discuss in the next section. See infra, text accompanying note 150.

98. Infra, text accompanying note 151.Google Scholar

99. See discussion supra, text accompanying notes 32–33 (liberal civil-rights methods grounded in belief that miscategorizations must be supplanted by correct categorizations).

100. Minow, , When Difference Has Its Home, supra note 2, at 127–28.Google Scholar

101. See, e.g., Minow, . Making All the Difference, supra note 2, at 80Google Scholar (“Difference can be understood not as intrinsic but as a function of relationships, as a comparison drawn between an individual and a norm that can be stated and evaluated”); Minow, , When Difference Has Its Home, supra note 2, at 113Google Scholar (“An egalitarian ideal would be better served by an approach that emphasizes the relationships between people”).

102. Minow, , When Difference Has Its Home, supra note 2, at 130.Google Scholar

103. Minow, , Making All the Difference, supra note 2, at 379.Google Scholar

104. See, e.g., id. at 384–87, 389 (discussing importance of such perspective taking); Minow, , When Difference Has Its Home, supra note 2, at 129Google Scholar (discussing need for judges to adopt the perspective of those labeled “different”). At one point in her book Minow denies that her approach embraces empathy; see id. at 219. But she seems only to intend by that statement to separate herself from relational feminist claims that empathy is a natural, organic, and/or unreflectively easy process, at least for women. Id. at 219–20 (making this point in context of a short story, “A Jury of Her Peers”). In fact, Minow's advocacy of perspective taking constitutes the definition of empathy; see, e.g., Goldenson, Robert M., 1 The Encyclopedia Of Human Behavior: Psychology, Psychiatry, and Mental Health 395 (1970)Google Scholar (defining empathy as “the capacity to understand and in some measure share another person's state of mind”). Whether empathy comes naturally or is an acquired characteristic, and whether or not women possess it more than men, arc questions external to the definition of the concept.

105. Minow, , Making All the Difference, supra note 2, at 382–83Google Scholar (defending her concept of “rights in relationship” as an important tool for challenging hierarchical effects of socially created difference).

106. For examples of empathy's promotion as a tool of political and legal reform, see, e.g., Rosenblum, Nancy L., Another Liberalism: Romanticism and the Reconstruction of Liberal Thought 184 (1987)CrossRefGoogle Scholar (linking communitarianism with a “politics of … empathy”); Sunstein, Cass, Beyond the Republican Revival 97 Yale L.J. 1539, 1555 (1988)CrossRefGoogle Scholar (explaining the concept of political empathy and its connection to communitarian visions of law); West, Robin, Law, Rights, and Other Totemic Illusions: Legal liberalism and Freud's Theory of the Rule of Law, 134 U. Pa. L. Rev. 817, 859 (1986)CrossRefGoogle Scholar (associating promotion of empathic law with relational feminists and communitarians); see generally Dailey, , supra note 2Google Scholar. I have been skeptical about empathy's potential as a tool for promoting legal communitarianism. See Cynthia, v. Ward, , A Kinder, Gentler Liberalism: Visions of Empathy in Feminist and Communitarian Literature, 61 U. Chi. L. Rev. 929 (1994)Google Scholar. The discussion in this section applies the conceptions of empathy introduced in that article.

107. Ward, , supra note 106, at 936.Google Scholar

108. Id. at 934–15 (developing a concept of projective empathy as an inherent premise of liberalism).

109. 347 U.S. 483 (1954).

110. For discussions of empathy's possible role in the Brown decision, see, e.g., Henderson, Lynne N., Legality and Empathy, 85 Mich. L. Rev. 1574 (1987)CrossRefGoogle Scholar; Ward, , supra note 106, at 941–42.Google Scholar

111. See, e.g., Minow, , Making All the Difference, supra note 2, at 50, 74–75Google Scholar (citing defects of equality principle based on sameness).

112. Ward, , supra note 106, at 948.Google Scholar

113. Id. at 919.

114. Id.

115. E.g., Minow, , Making All the Difference, supra note 2, at 230–31.Google Scholar

116. At least one scholar has accused Minow of communitarian essentialism; see Foster, Sheila, Community and Identity in a Postmodern World, 7 Berkeley Women's L.J. 181, 185 (1992)Google Scholar (“Whether intended or not, Minow's reconstruction of “rights language” through the recognition of their “inevitable relational dimensions” leads her down a familiar path of embracing “communitarianism”) (citation omitted); id. at 187 (“Thus, like advocates of the communitarian movement, Minow envisions a community, universal in nature, where the “language of rights” draws each claimant into the community and “grants each a basis opportunity to participate in the process of communal debate”).

117. See, e.g., sources cited in note 51; see also, from the critical legal studies camp, Kennedy, Duncan, A Cultural Pluralist Case for Affirinative Action in Legal Academia, 1990 Duke L.J. 705, 724CrossRefGoogle Scholar (“Though communities are different in ways that are best understood through the non-hierarchical, neutral idea of culture … some differences are not like that. Americans pursue their collective and individual projects in a situation of group domination and group subordination. With respect to … common measures of equality and inequality, we all recognize that some groups are enormously better off than others”).

118. This idea of difference as hierarchy is of course shared by many feminists and applied by them to the analysis of gender issues. See, e.g., MacKinnon, , supra note 34, at 219Google Scholar (“Difference is the velvet glove on the iron fist of [male] domination”).

119. See, e.g., Brooks, Roy L. and Newborn, Mary Jo, Critical Race Theory and Classical-Liberal Civil Rights Scholarship: A Distinction Without a Difference?, 82 Cal. L. Rev. 787, 804–44CrossRefGoogle Scholar (arguing that critical-race critiques of liberal discrimination law imply abolishment of Title VII); Foster, Sheila, Difference and Equality, supra note 2, at 154Google Scholar (“At the core of a substantive concept of diversity, under an equality paradigm, should be a commitment to include individuals with differences that have been constructed into a basis for systematic disadvantage and exclusion”); id. at 156 (“We must establish institutional participatory patterns that accept and value the contributions of those differences that have licen left out”); Harris, , The Jurisprudence of Reconstruction, supra note 2, at 761Google Scholar (“Rather than supporting assimilation to the dominant culture, the new social movements have demanded a recognition of their members' ‘difference’”).

120. The term is used by Harris, , The Jurisprudence of Reconstruction, supra note 2, at 159–66Google Scholar, and Young, , Justice and the Politics of Difference, supra note 2.Google Scholar

121. Young, , Justice and the Politics of Difference, supra note 2, at 156–91Google Scholar (outlining tenets of “politics of difference” and describing specific group rights such a politics would favor).

122. Foster, , Difference and Equality, supra note 2, at 109, 110.Google Scholar

123. Harris, Jurisprudence of Reconstruction, supra note 2, at 761.Google Scholar

124. Foster, , supra note 116, at 191.Google Scholar

125. Foster acknowledges that Minow creates discursive space for “a different analysis” when “self-assigned differences” are at stake, id. at 191, but feels that Minow pays too little attention to this aspect of difference and fails to build it into her social relations approach. Id. at 191–93.

126. Foster, , Difference and Equality, supra note 2, at 192.Google Scholar

127. Id. at 192.

128. Id.

129. Id. at 193.

130. Foster, , supra note 116, at 193Google Scholar (quoting from Chec, Alexander, A Queer Nationalism, Out/Look 15, 17 (Winter 1991)Google Scholar; see also Kennedy, , supra note 117, at 730Google Scholar (discussing the “irreducible link of commonality in the experience of people of color: rich or poor, male or female, learned or ignorant, all people of color are to some degree ‘outsiders’ in a society that is intensely color-conscious and in which the hegemony of whites is overwhelming”) (citation omitted).

131. Brooks, and Newborn, , supra note 119, at 800.Google Scholar

132. Id. at 802.

133. Id. at 802–03.

134. Harris, , supra note 2, at 743.Google Scholar

135. Id. at 743.

136. Id.

145. See, e.g., Sunstein, , supra note 106Google Scholar (describing liberal pluralism in these terms); Cynthia, v. Ward, , The Limits of Liberal Republicanism: Why Group-Based Remedies and Republican Citizenship Don't Mix, 91 Colum. L. Rev. 581 (1991)Google Scholar (contrasting liberal pluralism with communitarian republicanism).

146. See, e.g., Foster, , Difference and Equality, supra note 2, at 158–59Google Scholar (“The dominant culture has exercised its power to develop social and cultural definitions for those deemed outside of that culture. Consequently, the story of Blacks and other minorities has been created and told primarily by Whites, with little contribution from the subjects themselves. Blacks and other minorities have been effectively rendered ‘invisible’ not because Whites cannot see them, but because ‘whites see primarily what a white dominant culture has trained them to see’ and because the Black stories ‘simply do not register’”); Kennedy, , supra note 117, at 722Google Scholar (“An important human reality is the experience of defining oneself as ‘a member of a group’ in this strong sense of sharing goals and a discursive practice”); id. at 723 (“Communities have cultures. This means that individuals have traits that are neither genetically determined nor voluntarily chosen, but rather consciously and unconsciously taught through community life. Community life forms customs and habits, capacities to produce linguistic and other performances, and individual understandings of good and bad, true and false, worthy and unworthy”); Young, , Justice and the Politics of Difference, supra note 2, at 163Google Scholar (“Today and for the foreseeable future societies are certainly structured by groups, and some are privileged while others are oppressed”).

147. But see Bell, Derrick, Racial Realism, 24 Conn. L. Rev. 363, 373–74 (1992)Google Scholar (arguing that African Americans should abandon quest for racial equality and focus on bettering their situation in society); Bell, Derrick, Faces at the Bottom of the Wells the Permanence of Racism 12 (1992)Google Scholar (“Black people will never gain equality in this country”) (emphasis omitted).

148. Relational feminist theory also faces this problem. Some of Robin West's work, for example, suggests that women are profoundly different from men at every level. See, e.g., West, , supra note 1, at 17Google Scholar (“According to the vast literature on difference now being developed by cultural feminists, women's cognitive development, literary sensibility, aesthetic taste, and psychological development, no less than our anatomy, are all fundamentally different from men's. … The most significant aspect of our difference, though, is surely the moral difference”). If this is true, women's equality to men (rather than preferential or inferior treatment) requires an independent argument showing why women, although so very different, nevertheless possess equal worth.

149. See, e.g., Harris, , supra note 2, at 761.Google Scholar

150. See generally Bell, , Racial Realism, supra note 147Google Scholar; Bell, Faces at the Bottom of the Well, , supra note 147Google Scholar; see also Brooks, and Newborn, , supra note 119, at 798Google Scholar (racism is “normal science” in the United States); Harris, , supra note 2, at 749Google Scholar (“Derrick Bell argues that racism is a permanent feature of the American landscape, not something we can throw off in a magic moment of emancipation. And in a moment of deep pessimism, Richard Dclgado's fictional friend ‘Rodrigo Crenshaw’ has suggested that racism is an intrinsic feature of the ‘The Enlightenment’ itself”) (citations omitted).

151. See generally Harris, , supra note 40Google Scholar; Spelman, Elizabeth, supra note 46.Google Scholar