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In this article, Professor David Orentlicher argues that following the U.S. Supreme Court's affirmative action decisions in June 2003, both the Court in its defense of diversity and the commentators in their critiques of the diversity rationale have misjudged the public interest in diversity . Rather than having insufficient weight to justify affirmative action or reflecting a limited educational interest, diversity is a critical principle for much of American constitutional and social structure. In particular, the federalist system of government rests in large part on the belief that a diversity of approaches by the fifty states will lead to better government than would a single approach by the national government. Similarly, the American capitalist economic system is premised on the belief that the economy will flourish through a diversity of individual entrepreneurial activities rather than through a system of central control by the government. Not much is more American than the fostering of diversity.

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70 Mo.L. Rev. 777 (2005).