What do we owe students who, on account of disability, have differential needs and capacities fro... more What do we owe students who, on account of disability, have differential needs and capacities from others? What, for that matter, do we owe all students? A central claim of the present Article is that we cannot answer the former question without also considering the latter. Moreover, a satisfactory answer requires reaching beyond notions of “equality of opportunity,” to probe our deepest commitments regarding distributive equity, or substantive fairness in access to the good of educational development. This Article offers a novel understanding of these deepest commitments, to advance a new principle of distributive justice, the principle of proportionate priority. It pursues the implications of this principle in depth for the specific setting of educational accommodation for disability—to provide a comprehensive answer to a question recently before the Supreme Court. Its ramifications extend, however, far more widely, not only for educational policy in general, but also for other areas of law and policy
A major development in the analysis of copyright in the last two decades has been the emergence o... more A major development in the analysis of copyright in the last two decades has been the emergence of “democratic” theories of cultural expression, challenging the long-standing dominance in this field by normative theories of natural rights and economic efficiency. The central thrust of democratic theories is to emphasize the significance of the expressive activities regulated by copyright law not only for political life, but also for individual selfauthorship and robust engagement by persons in their surrounding culture, to take an active part in social processes of meaning-making. However, a major stumbling block facing democratic theories has been a lack of understanding, by both advocates and skeptics, of how democratic theories relate to rival views in terms of concrete implications for specific questions of copyright law and policy. In particular, democratic (and, as we show, distributive-equity) theories seem to share with economic analysis an attractive attentiveness to the co...
Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repai... more Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repair. Even those welcoming the Supreme Court’s return to express subject-matter bars have been left disoriented by the Court’s pronouncements in this area. Which subject matter is ineligible, why it is ineligible, and how it might become eligible have all remained enshrouded in mystery. The nub of the problem, this Article contends, is two-fold. First, from its 19th century origins to the present, courts grappling with ineligibility doctrine have remained in the grip of a series of “physicalist” misconceptions of the object of patent rights, and hence of the subject matter claimed in the patents at issue. In a nutshell, courts have not fully internalized that the object of patent rights is always and only an intangible space of “knowledge of” something, and never some “thing” itself. As a result, they have failed to characterize accurately the content of the ineligible subject matter categories, much less specify why they are ineligible. Removing these physicalist errors dissipates much of the fog in this area. In its wake emerges a second distinct theme of ineligibility case law: the intimation by the courts of a set of embryonic “functionality” concerns, which seek to restrict patents to zones of applied rather than basic knowledge. But these concerns have remained inchoate, owing to their entanglement in a physicalist web. Reconstructing eligibility doctrine requires, then, extricating incipient functionality concerns from the physicalist thicket, developing their independent basis, and, finally, properly following through on their doctrinal implications. Doing so yields three large gains. First, it provides a unified account of this body of law, something scholars have despaired of realizing. Second, it cures each of the three defects marring the existing doctrinal framework. Finally, it fully reintegrates the common law of ineligibility with the statutory and constitutional framework of patent law.
InIP scholarship, patents are commonly understood as more efficient than other approaches to inno... more InIP scholarship, patents are commonly understood as more efficient than other approaches to innovadon policy. Their primary ostensible advantage is allocadve: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Exisdng accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of informadon goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fiilly appreciated in the literature, nor have its implications for the standard jusdfication for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importandy, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizible: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variabk along a continuum, property rights in informadon, even if formally perfected, and even assuming away convendonal transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternadves to patents such as government funding and gives us new insights about how to allocate aich funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currendy unrecognized implications that patents may have for values such as privacy and free speech.
IntroductionThere is a new kid on the block of copyright-policy analysis. The incorporation of in... more IntroductionThere is a new kid on the block of copyright-policy analysis. The incorporation of insights from "product differentiation" theory is arguably the most important development in the economic analysis of copyright in recent years.1 According to its most ambitious proponents, this approach provides a superior theoretical alternative to the traditional incentive-access framework, one that shows concerns over the "monopoly power" conferred by intellectual property rights are often misplaced.2 Moreover, it is heralded as offering a resolution for what has heretofore been taken to be an intractable trade-off inherent in copyright-the tension between incentives and access. On this view, product differentiation theory recommends, counterintuitively, that both increased incentives and increased access can and should be achieved primarily by strengthening copyright protection.3 More modestly, others suggest that product differentiation theory simply supplements the traditional economic analysis of copyright, by providing a better account of certain features of copyright doctrine. In particular, the theory is argued to provide a firmer foundation for a strong derivative works right, which has been difficult to explain or justify under traditional analysis.4That traditional analysis is grounded in a framework known as the incentive-access paradigm.5 Within that framework, copyright is one possible solution to the public-policy problem generated by the fact that informational works are often costly to create but inexpensive to copy.6 Where this is so, the creators of such works may not be able to appropriate enough of the works' social value, through various competitive advantages from innovation often available in markets, to recoup their costs of development.7 Copyright steps in to confer upon creators legal exclu- sionary entitlements, which empower them to charge a price for accessing the works sufficient to recover their innovation costs. These entitlements thus allow the copyright owner to internalize a substantial part of the social value of the work, thereby boosting the incentive for, or enabling recovery of the costs of, creation and publication. This social benefit of copyright comes, however, with a price tag. Legal exclusivity, at least in the absence of the unrealistic possibility of (marginally costless) perfect price dis- crimination,8 leads to inefficient pricing strategies that generate deadweight loss, meaning some consumers willing and able to pay the marginal cost of distributing the work are nevertheless excluded from accessing it.9 Analyzed from this perspective, copyright policy becomes a complex and often elusive balancing act between the relative social costs and benefits of specific institutional details of copyright law.This traditional understanding has provided the dominant framework for economic analysis of copyright during the past five decades and, in a looser form, has pervaded American copyright thought and practice for much longer.10 It has supplied a method for coherent, structured thinking about copyright-policy questions, generated an abundance of scholarly literature, and left its mark on judicial opinions and other forms of legal analysis.11 At the same time, however, the framework has often proved hard to apply, generated somewhat conflicting theoretical arguments, and has been plagued by a host of empirical uncertainties requiring massive, and as yet unavailable, information for their resolution.12Recently the economic analysis of copyright in legal scholarship has taken a new turn. Legal scholars-most notably Christopher Yoo and Michael Abramowicz in a series of pioneering articles13-have begun to apply to copyright insights from a well-established branch of economic analysis known as "monopolistic competition" or product differentiation theory.14 While the underlying economic models may be complex, the gist of the theory as applied to copyright is straightforward: expressive works, even when protected by the legal exclusivity characteristic of copyright, are subject to competition from other expressive works which constitute partial substitutes for them. …
humanitarian-foreign-aid-and-get-china-step_598304.html; Steve Benen, "Perry, Romney Target Forei... more humanitarian-foreign-aid-and-get-china-step_598304.html; Steve Benen, "Perry, Romney Target Foreign Aid," Political Animal, November 13, 2011, http://www.washingtonmonthly.com/political-4 By using this term, we mean to invoke, loosely, the concept of "overlapping consensus" developed by John Rawls in Political Liberalism. John Rawls, Political Liberalism 385-95 (expanded ed., Columbia Univ. Press 2005) (1993). Rawls offered the concept as a solution to the problem of disagreements between "comprehensive doctrines" or worldviews. Id. at 385-86. It seemed unlikely to him that reason could solve such disagreements. Id. at 387. Consequently, as a "political" solution to this "fact of reasonable pluralism" in the realm of moral metaphysics, he urged that, when debating core issues of public life, efforts be made to find an "overlapping consensus" about the fair terms of social cooperation. Id. at 390-91. This entails framing arguments in a shared vocabulary of "public reason," so that adherents to different "reasonable" comprehensive doctrines can recognize the arguments of others as congruent with, or even representing in altered form, their own deeper commitments. Id. at 392. Without committing ourselves to the assumptions underpinning Rawls's overall enterprise, we point out that a rough parallel exists between his concept and our attempt here to accommodate current disagreements (although in our case the disagreements are not between worldviews but between rival political philosophies, and they do not concern Rawls's "constitutional essentials" so much as "legislative" questions of social policy).
Each year, roughly nine million people in the developing world die from infectious diseases. 1 Mi... more Each year, roughly nine million people in the developing world die from infectious diseases. 1 Millions more endure suffering caused by the same diseases. Many of those deaths and much of that pain could be avoided by modifying the combination of laws and government programs that provide incentives for the development and distribution of drugs. In a recent paper, we argued that such modifications are morally imperative, despite the fact that they would increase the already substantial extent to which the cost of developing new drugs is borne by the residents of the developed world, either by raising their taxes or by increasing the prices they pay for patented pharmaceutical products. 2 The difficult question, in our judgment, is not whether we should modify our laws and institutions to address this crisis, but which combination of reforms would alleviate the problem most fairly and efficiently. We are currently working on a book that examines and compares a wide variety of potential solutions. 3 In this paper (which will eventually appear as a chapter in that book), we focus on one option: replacing or supplementing the patent system, as the main method by which we encourage the creation of new drugs, with a system of government prizes.
along the lines we propose may increase the potential for future economic gains for citizens of d... more along the lines we propose may increase the potential for future economic gains for citizens of developed countries. A third argument in the same family is that not only will increased prosperity in the South have economic benefits for the North, it may also go some distance toward addressing a prominent social issue: immigration. Reducing misery in the South would likely ease immigration pressures on the countries of the North. Finally, eliminating one of the causes of underdevelopment in the South might reduce the threats that the residents of the North face either from spreading regional instabilities or from terrorism. The former concern, flagged by the World Health Organization's ("WHO") Commission on Macroeconomics and Health, 11 appears to have underlain then-Secretary of State Colin Powell's declaration in 2001 that the AIDS crisis in Africa "is a national security problem" for the United States. 12 Regarding the latter, although poverty is plainly not sufficient to cause terrorism, it may increase its incidence. In the formulation of economist Branko Milanovic, if it is the case that "resentment breeds terrorism," then we should be concerned about impoverishment, which may breed resentment. 13 Arguments of this type have frequently figured in the debate over global health policy and will likely continue to do so in the future. It must be admitted, however, that none is especially powerful. Northerners who wish merely to protect their own health in the most cost-effective way should probably adopt quarantine systems or requirements that visitors or immigrants to their own countries show that they have received appropriate vaccines and are not infected with any of the diseases in question. More harshly, self-interest might argue against providing life-sustaining treatments (e.g., anti-retroviral drugs for AIDS) to developing country residents on the ground that keeping infected and contagious people alive only increases the hazard to "us." And the causal connections on which each of the other considerations rests are admittedly speculative. For meaningful MACROECONOMICS AND HEALTH: INVESTING IN HEALTH FOR ECONOMIC DEVELOPMENT 21-40 (2001). 11 Id. at 28. 12 This Week (ABC-Television News broadcast Feb. 4, 2001) (interviewing Colin Powell). We thank Derek Bambauer for drawing our attention to this statement. 13 Quoted in Larry Elliott & Charlotte Denny, Top 1% Earn as Much as the Poorest 57%, GUARDIAN (London), Jan. 18, 2002, at 21. Milanovic's full statement was: "Should [rising global inequality] be of concern to the rich? Perhaps, if we believe that wide income gaps lead to immigration and resentment breeds terrorism. For ultimately, the rich may have to live in gated communities while the poor roam the world outside those few enclaves." Id.
What do we owe students who, on account of disability, have differential needs and capacities fro... more What do we owe students who, on account of disability, have differential needs and capacities from others? What, for that matter, do we owe all students? A central claim of the present Article is that we cannot answer the former question without also considering the latter. Moreover, a satisfactory answer requires reaching beyond notions of “equality of opportunity,” to probe our deepest commitments regarding distributive equity, or substantive fairness in access to the good of educational development. This Article offers a novel understanding of these deepest commitments, to advance a new principle of distributive justice, the principle of proportionate priority. It pursues the implications of this principle in depth for the specific setting of educational accommodation for disability – to provide a comprehensive answer to a question now before the Supreme Court. Its ramifications extend, however, far more widely, not only for educational policy in general but also for other areas of law and policy.
What do we owe students who, on account of disability, have differential needs and capacities fro... more What do we owe students who, on account of disability, have differential needs and capacities from others? What, for that matter, do we owe all students? A central claim of the present Article is that we cannot answer the former question without also considering the latter. Moreover, a satisfactory answer requires reaching beyond notions of “equality of opportunity,” to probe our deepest commitments regarding distributive equity, or substantive fairness in access to the good of educational development. This Article offers a novel understanding of these deepest commitments, to advance a new principle of distributive justice, the principle of proportionate priority. It pursues the implications of this principle in depth for the specific setting of educational accommodation for disability—to provide a comprehensive answer to a question recently before the Supreme Court. Its ramifications extend, however, far more widely, not only for educational policy in general, but also for other areas of law and policy
A major development in the analysis of copyright in the last two decades has been the emergence o... more A major development in the analysis of copyright in the last two decades has been the emergence of “democratic” theories of cultural expression, challenging the long-standing dominance in this field by normative theories of natural rights and economic efficiency. The central thrust of democratic theories is to emphasize the significance of the expressive activities regulated by copyright law not only for political life, but also for individual selfauthorship and robust engagement by persons in their surrounding culture, to take an active part in social processes of meaning-making. However, a major stumbling block facing democratic theories has been a lack of understanding, by both advocates and skeptics, of how democratic theories relate to rival views in terms of concrete implications for specific questions of copyright law and policy. In particular, democratic (and, as we show, distributive-equity) theories seem to share with economic analysis an attractive attentiveness to the co...
Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repai... more Patent law’s doctrine of ineligible subject matter is widely agreed to be in a bad state of repair. Even those welcoming the Supreme Court’s return to express subject-matter bars have been left disoriented by the Court’s pronouncements in this area. Which subject matter is ineligible, why it is ineligible, and how it might become eligible have all remained enshrouded in mystery. The nub of the problem, this Article contends, is two-fold. First, from its 19th century origins to the present, courts grappling with ineligibility doctrine have remained in the grip of a series of “physicalist” misconceptions of the object of patent rights, and hence of the subject matter claimed in the patents at issue. In a nutshell, courts have not fully internalized that the object of patent rights is always and only an intangible space of “knowledge of” something, and never some “thing” itself. As a result, they have failed to characterize accurately the content of the ineligible subject matter categories, much less specify why they are ineligible. Removing these physicalist errors dissipates much of the fog in this area. In its wake emerges a second distinct theme of ineligibility case law: the intimation by the courts of a set of embryonic “functionality” concerns, which seek to restrict patents to zones of applied rather than basic knowledge. But these concerns have remained inchoate, owing to their entanglement in a physicalist web. Reconstructing eligibility doctrine requires, then, extricating incipient functionality concerns from the physicalist thicket, developing their independent basis, and, finally, properly following through on their doctrinal implications. Doing so yields three large gains. First, it provides a unified account of this body of law, something scholars have despaired of realizing. Second, it cures each of the three defects marring the existing doctrinal framework. Finally, it fully reintegrates the common law of ineligibility with the statutory and constitutional framework of patent law.
InIP scholarship, patents are commonly understood as more efficient than other approaches to inno... more InIP scholarship, patents are commonly understood as more efficient than other approaches to innovadon policy. Their primary ostensible advantage is allocadve: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Exisdng accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of informadon goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fiilly appreciated in the literature, nor have its implications for the standard jusdfication for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importandy, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizible: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variabk along a continuum, property rights in informadon, even if formally perfected, and even assuming away convendonal transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternadves to patents such as government funding and gives us new insights about how to allocate aich funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currendy unrecognized implications that patents may have for values such as privacy and free speech.
IntroductionThere is a new kid on the block of copyright-policy analysis. The incorporation of in... more IntroductionThere is a new kid on the block of copyright-policy analysis. The incorporation of insights from "product differentiation" theory is arguably the most important development in the economic analysis of copyright in recent years.1 According to its most ambitious proponents, this approach provides a superior theoretical alternative to the traditional incentive-access framework, one that shows concerns over the "monopoly power" conferred by intellectual property rights are often misplaced.2 Moreover, it is heralded as offering a resolution for what has heretofore been taken to be an intractable trade-off inherent in copyright-the tension between incentives and access. On this view, product differentiation theory recommends, counterintuitively, that both increased incentives and increased access can and should be achieved primarily by strengthening copyright protection.3 More modestly, others suggest that product differentiation theory simply supplements the traditional economic analysis of copyright, by providing a better account of certain features of copyright doctrine. In particular, the theory is argued to provide a firmer foundation for a strong derivative works right, which has been difficult to explain or justify under traditional analysis.4That traditional analysis is grounded in a framework known as the incentive-access paradigm.5 Within that framework, copyright is one possible solution to the public-policy problem generated by the fact that informational works are often costly to create but inexpensive to copy.6 Where this is so, the creators of such works may not be able to appropriate enough of the works' social value, through various competitive advantages from innovation often available in markets, to recoup their costs of development.7 Copyright steps in to confer upon creators legal exclu- sionary entitlements, which empower them to charge a price for accessing the works sufficient to recover their innovation costs. These entitlements thus allow the copyright owner to internalize a substantial part of the social value of the work, thereby boosting the incentive for, or enabling recovery of the costs of, creation and publication. This social benefit of copyright comes, however, with a price tag. Legal exclusivity, at least in the absence of the unrealistic possibility of (marginally costless) perfect price dis- crimination,8 leads to inefficient pricing strategies that generate deadweight loss, meaning some consumers willing and able to pay the marginal cost of distributing the work are nevertheless excluded from accessing it.9 Analyzed from this perspective, copyright policy becomes a complex and often elusive balancing act between the relative social costs and benefits of specific institutional details of copyright law.This traditional understanding has provided the dominant framework for economic analysis of copyright during the past five decades and, in a looser form, has pervaded American copyright thought and practice for much longer.10 It has supplied a method for coherent, structured thinking about copyright-policy questions, generated an abundance of scholarly literature, and left its mark on judicial opinions and other forms of legal analysis.11 At the same time, however, the framework has often proved hard to apply, generated somewhat conflicting theoretical arguments, and has been plagued by a host of empirical uncertainties requiring massive, and as yet unavailable, information for their resolution.12Recently the economic analysis of copyright in legal scholarship has taken a new turn. Legal scholars-most notably Christopher Yoo and Michael Abramowicz in a series of pioneering articles13-have begun to apply to copyright insights from a well-established branch of economic analysis known as "monopolistic competition" or product differentiation theory.14 While the underlying economic models may be complex, the gist of the theory as applied to copyright is straightforward: expressive works, even when protected by the legal exclusivity characteristic of copyright, are subject to competition from other expressive works which constitute partial substitutes for them. …
humanitarian-foreign-aid-and-get-china-step_598304.html; Steve Benen, "Perry, Romney Target Forei... more humanitarian-foreign-aid-and-get-china-step_598304.html; Steve Benen, "Perry, Romney Target Foreign Aid," Political Animal, November 13, 2011, http://www.washingtonmonthly.com/political-4 By using this term, we mean to invoke, loosely, the concept of "overlapping consensus" developed by John Rawls in Political Liberalism. John Rawls, Political Liberalism 385-95 (expanded ed., Columbia Univ. Press 2005) (1993). Rawls offered the concept as a solution to the problem of disagreements between "comprehensive doctrines" or worldviews. Id. at 385-86. It seemed unlikely to him that reason could solve such disagreements. Id. at 387. Consequently, as a "political" solution to this "fact of reasonable pluralism" in the realm of moral metaphysics, he urged that, when debating core issues of public life, efforts be made to find an "overlapping consensus" about the fair terms of social cooperation. Id. at 390-91. This entails framing arguments in a shared vocabulary of "public reason," so that adherents to different "reasonable" comprehensive doctrines can recognize the arguments of others as congruent with, or even representing in altered form, their own deeper commitments. Id. at 392. Without committing ourselves to the assumptions underpinning Rawls's overall enterprise, we point out that a rough parallel exists between his concept and our attempt here to accommodate current disagreements (although in our case the disagreements are not between worldviews but between rival political philosophies, and they do not concern Rawls's "constitutional essentials" so much as "legislative" questions of social policy).
Each year, roughly nine million people in the developing world die from infectious diseases. 1 Mi... more Each year, roughly nine million people in the developing world die from infectious diseases. 1 Millions more endure suffering caused by the same diseases. Many of those deaths and much of that pain could be avoided by modifying the combination of laws and government programs that provide incentives for the development and distribution of drugs. In a recent paper, we argued that such modifications are morally imperative, despite the fact that they would increase the already substantial extent to which the cost of developing new drugs is borne by the residents of the developed world, either by raising their taxes or by increasing the prices they pay for patented pharmaceutical products. 2 The difficult question, in our judgment, is not whether we should modify our laws and institutions to address this crisis, but which combination of reforms would alleviate the problem most fairly and efficiently. We are currently working on a book that examines and compares a wide variety of potential solutions. 3 In this paper (which will eventually appear as a chapter in that book), we focus on one option: replacing or supplementing the patent system, as the main method by which we encourage the creation of new drugs, with a system of government prizes.
along the lines we propose may increase the potential for future economic gains for citizens of d... more along the lines we propose may increase the potential for future economic gains for citizens of developed countries. A third argument in the same family is that not only will increased prosperity in the South have economic benefits for the North, it may also go some distance toward addressing a prominent social issue: immigration. Reducing misery in the South would likely ease immigration pressures on the countries of the North. Finally, eliminating one of the causes of underdevelopment in the South might reduce the threats that the residents of the North face either from spreading regional instabilities or from terrorism. The former concern, flagged by the World Health Organization's ("WHO") Commission on Macroeconomics and Health, 11 appears to have underlain then-Secretary of State Colin Powell's declaration in 2001 that the AIDS crisis in Africa "is a national security problem" for the United States. 12 Regarding the latter, although poverty is plainly not sufficient to cause terrorism, it may increase its incidence. In the formulation of economist Branko Milanovic, if it is the case that "resentment breeds terrorism," then we should be concerned about impoverishment, which may breed resentment. 13 Arguments of this type have frequently figured in the debate over global health policy and will likely continue to do so in the future. It must be admitted, however, that none is especially powerful. Northerners who wish merely to protect their own health in the most cost-effective way should probably adopt quarantine systems or requirements that visitors or immigrants to their own countries show that they have received appropriate vaccines and are not infected with any of the diseases in question. More harshly, self-interest might argue against providing life-sustaining treatments (e.g., anti-retroviral drugs for AIDS) to developing country residents on the ground that keeping infected and contagious people alive only increases the hazard to "us." And the causal connections on which each of the other considerations rests are admittedly speculative. For meaningful MACROECONOMICS AND HEALTH: INVESTING IN HEALTH FOR ECONOMIC DEVELOPMENT 21-40 (2001). 11 Id. at 28. 12 This Week (ABC-Television News broadcast Feb. 4, 2001) (interviewing Colin Powell). We thank Derek Bambauer for drawing our attention to this statement. 13 Quoted in Larry Elliott & Charlotte Denny, Top 1% Earn as Much as the Poorest 57%, GUARDIAN (London), Jan. 18, 2002, at 21. Milanovic's full statement was: "Should [rising global inequality] be of concern to the rich? Perhaps, if we believe that wide income gaps lead to immigration and resentment breeds terrorism. For ultimately, the rich may have to live in gated communities while the poor roam the world outside those few enclaves." Id.
What do we owe students who, on account of disability, have differential needs and capacities fro... more What do we owe students who, on account of disability, have differential needs and capacities from others? What, for that matter, do we owe all students? A central claim of the present Article is that we cannot answer the former question without also considering the latter. Moreover, a satisfactory answer requires reaching beyond notions of “equality of opportunity,” to probe our deepest commitments regarding distributive equity, or substantive fairness in access to the good of educational development. This Article offers a novel understanding of these deepest commitments, to advance a new principle of distributive justice, the principle of proportionate priority. It pursues the implications of this principle in depth for the specific setting of educational accommodation for disability – to provide a comprehensive answer to a question now before the Supreme Court. Its ramifications extend, however, far more widely, not only for educational policy in general but also for other areas of law and policy.
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