Nussbaum and Law 1472443446, 9781472443441

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Nussbaum and Law

Philosophers and Law

Series Editor: Tom Campbell Titles in the Series: Habermas and Law Hugh Baxter

Marx and Law Susan Easton

Cicero and Modern Law Richard 0. Brooks

Hobbes on Law Claire Finkelstein

Aquinas and Modern Law Richard 0. Brooks and James Bernard Murphy

Foucault and Law Ben Golder and Peter Fitzpatrick

Aristotle and Modern Law Richard 0. Brooks and James Bernard Murphy

Derrida and Law Pierre Legrand

Augustine and Modern Law Richard 0. Brooks

Hume and Law Ken Mackinnon

Plato and Modern Law Richard 0. Brooks

Gadamer and Law Francis J. Mootz JJJ

Locke and Law Thorn Brooks

Nietzsche and Law Francis J. Mootz JJJ and Peter Goodrich

Rawls and Law Thorn Brooks

Wittgenstein and Law Dennis Patterson

Rousseau and Law Thorn Brooks

Hegel and Law Michael Salter

Kant and Law B. Sharon Byrd and Joachim Hruschka

Nussbaum and Law Robin West

Spinoza and Law Andre Santos Campos

Agamben and Law Thanos Zartaloudis

Nussbaum and Law

Edited by

Robin West Georgetown University Law Center, USA

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First published 2015 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © 2015 Robin West. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Wherever possible, these reprints are made from a copy ofthe original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality of the reprint, some variability may inevitably remain.

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. The Library of Congress has cataloged the printed edition as follows: 2014957738

ISBN 9781472443441 (hbk)

Contents Acknowledgements Series Preface Introduction: Towards Humanistic Jurisprudence PART I

2 3 4 5

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THE CAPABILITIES APPROACH

Michael Ashley Stein (2007), 'Disability Human Rights', California Law Review, 95, pp. 75-121. 3 Ravi Malhotra (2009), 'Martha Nussbaum's Capabilities Approach and Equality Rights for People with Disabilities: Rethinking the Granovsky Decision', Supreme Court Law Review, 45, pp. 61-90. 51 Alexander A. Boni-Saenz (2013), 'Personal Delegations', Brooklyn Law Review, 78, pp. 1231-78. 81 Ani B. Satz (2009), 'Animals as Vulnerable Subjects: Beyond Interest-Convergence, 129 Hierarchy, and Property', Animal Law, 16, pp. 65-122. Robin West (2015), 'Capabilities and Constitutions', Nussbaum and Law, Farnham: Ashgate, pp. 187-202. 187

PART II

LAW AND EMOTIONS

6 Katharine K. Baker (2005), 'Gender and Emotion in Criminal Law', Harvard Journal of Law & Gender, 28, pp. 447-66. 7 Susan Ban des (1996), 'Empathy, Narrative, and Victim Impact Statements', University a/Chicago Law Review, 63, pp. 361--412. 8 David Gray (20 15), 'Justice and Mercy in the Face of Excessive Suffering: Some Preliminary Thoughts', Nussbaum and Law, Farnham: Ashgate, pp. 277-98. PART III

205 225 277

SEXUALITY, GENDER, FEMINISM AND LAW

9 Noa Ben-Asher (2014), 'Conferring Dignity: The Metamorphosis of the Legal Homosexual', Harvard Journal of Law & Gender, 37, pp. 243-84. 10 Tracey E. Higgins (201 0), 'Feminism as Liberalism: A Tribute to the Work of Martha Nussbaum', Columbia Journal ofGender and Law, 19, pp. 65-87. 11 Robin West (2003), 'Human Capabilities and Human Authorities: A Comment on Martha Nussbaum's Women and Human Development', StThomas Law Review, 15, pp. 757-90.

301 343 367

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PART IV

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LAW AND LITERATURE

12 Elizabeth F. Emens (20 II), 'Regulatory Fictions: On Marriage and Countermarriage', California Law Review, 99, pp. 235-72. 13 Kenji Yoshino (2005), 'The City and the Poet', Yale Law Journal, 114, pp. 1835-96.

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Name Index

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Acknowledgements Ashgate would like to thank the researchers and the contributing authors who provided copies, along with the following for their permission to reprint copyright material. Harvard Law School for the essays: Katharine K. Baker (2005), 'Gender and Emotion in Criminal Law', Harvard Journal of Law & Gender, 28, pp. 447--66; Noa Ben-Asher (2014), 'Conferring Dignity: The Metamorphosis of the Legal Homosexual', Harvard Journal of Law & Gender, 37, pp. 243-84. LexisNexis Canada for the essay: Ravi Malhotra (2009), 'Martha Nussbaum's Capabilities Approach and Equality Rights for People with Disabilities: Rethinking the Granovsky Decision', Supreme Court Law Review, 45, pp. 61-90. Copyright© 2009 LexisNexis Canada.

StThomas Law Review for the essay: Robin West (2003), 'Human Capabilities and Human Authorities: A Comment on Martha Nussbaum's Women and Human Development', StThomas Law Review, 15, pp. 757-90. University of California at Berkeley for the essays: Michael Ashley Stein (2007), 'Disability Human Rights', California Law Review, 95, pp. 75-121. Copyright © 2007 California Law Review, Inc.; Elizabeth F. Emens (2011), 'Regulatory Fictions: On Marriage and Countermarriage', California Law Review, 99, pp. 235-72. Copyright© 2011 California Law Review, Inc. University of Chicago Press for the essay: Susan Bandes (1996), 'Empathy, Narrative and Victim Impact Statements', University ofChicago Law Review, 63, pp. 361--412. Copyright © 1996 by the University of Chicago. Yale Law Journal Co. for the essay: Kenji Yoshino (2005), 'The City and the Poet', Yale Law Journal, 114, pp. 1835-96. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity. Publisher's Note

The material in this volume has been reproduced using the facsimile method. This means we can retain the original pagination to facilitate easy and correct citation of the original essays. It also explains the variety of typefaces, page layouts and numbering.

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Series Preface The series Philosophers and Law selects and makes accessible the most important essays in English that deal with the application to law of the work of major philosophers for whom law was not a main concern. The series encompasses not only what these philosophers had to say about law but also brings together essays which consider those aspects of the work of major philosophers which bear on our interpretation and assessment of current law and legal theory. The essays are based on scholarly study of particular philosophers and deal with both the nature and role of law and the application of philosophy to specific areas of law. Some philosophers, such as Hans Kelsen, Roscoe Pound and Herbert Hart are known principally as philosophers of law. Others, whose names are not primarily or immediately associated with law, such as Aristotle, Kant and Hegel, have, nevertheless, had a profound influence on legal thought. It is with the significance for law of this second group of philosophers that this series is concerned. Each volume in the series deals with a major philosopher whose work has been taken up and applied to the study and critique of law and legal systems. The essays, which have all been previously published in law, philosophy and politics journals and books, are selected and introduced by an editor with a special interest in the philosopher in question and an engagement in contemporary legal studies. The essays chosen represent the most important and influential contributions to the interpretation of the philosophers concerned and the continuing relevance of their work to current legal issues.

TOM CAMPBELL Series Editor Centre for Applied Philosophy and Public Ethics Charles Sturt University

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Introduction Towards Humanistic Jurisprudence Martha Nussbaum- classicist, philosopher, political theorist, feminist and public intellectual - has impacted a wide swath of legal scholarship on a number of jurisprudential and doctrinal issues, and spanning several substantive fields. For example, her voluminous and interdisciplinary writing on the coherence of our emotions (see, for example, Nussbaum, 1990, 1995, 2004) has deepened our understanding of how mercy and sympathy inform- or distort- our judgments of culpability in criminal law (see, for example, Bandes, Chapter 7 in this volume; Gray, Chapter 8 in this volume), of how our disgust at our own animalistic nature can pervert our quest for full equality in our anti-discrimination law, how our capacity for empathy can aid judges as they go about their work of understanding the particular circumstances of the litigants that come before them and whether, and how, punishment should be enhanced or mitigated on the basis of the personal narratives of victims and defendants respectively. Her wide-ranging scholarship on the content and importance of our human capabilities (Nussbaum, 2000, 2011) sometimes in collaboration with her colleague Amartya Sen (Nussbaum and Sen, 1988, 1993), has substantially changed the way we deliberate over the role of both human and constitutional rights in political life, whether and how we should accord greater educational and employment opportunities to our co-citizens with disabilities (see Stein, Chapter 1 in this volume; Malhotra, Chapter 2 in this volume), and what justice might require of sovereign states worldwide with respect to their poorest citizens (West, Chapter 5 in this volume; Nussbaum, 2007), as well as what it might require of all of us in our dealings with sentient non-humans (Satz, Chapter 4 in this volume), among much else. Her writing on the importance of individual autonomy, particularly in those areas where its protection might come at the cost of the substantive equality of others, has deepened our understanding of that contested value, and hence of the constitutional provisions that protect it as well as the due limits that might sensibly be placed upon it (Nussbaum, 2008). Her work on the centrality of both individual and societal flourishing to the aspirations of law has changed the way we think about the nature of adjudication and legal justice (Nussbaum, 1995) and her work on the challenges women face in developing countries has deepened our appreciation of both the circumstances of disempowered individuals in cultures different from our own and the universality of some of our deepest aspirations for law and civic society (Nussbaum, 1999, 2000). Our substantive law in an impressive number of fields, including, among others, criminal law, education law, disabilities law, human rights law, constitutional law, international law, animal rights, law pertaining to sexuality and gender, and the legal scholarship surrounding and impacting that law, all bear the mark of Martha Nussbaum's prodigious interdisciplinary and humanistic inquiries, as the essays in this volume attest. Beneath this list of particular areas of influence, however, all ofwhich are explored in the essays that follow, one can discern two deeper and cross-cutting currents of Nussbaum ian influence on contemporary legal scholarship, each of which I will address sequentially in

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the two major parts of this introductory essay. The first is disciplinary and methodological. Over a career spanning five decades, Nussbaum has argued with passion, great erudition and considerable flair that both relatively narrow doctrinal legal questions as well as larger jurisprudential questions should be answered, at least in part, by recourse to the insights and methods of the humanities. If we wish to know, for example, whether either (or both) a 'victim impact statement' intended to garner disgust on the part of a jury for a particular defendant's crime or an 'anti-sympathy instruction' designed to discourage jurors from indulging in sympathy for a defendant's difficult circumstances, should be admissible or encouraged in a criminal trial, we would be wise to consider the teachings of classical philosophers as well as contemporary psychologists on the moral wisdom that may be conveyed - or blocked by sympathetic engagement with the suffering of others, or what Nussbaum has long called 'love's knowledge' (1990; Kahan and Nussbaum, 1996). If, to take another example, we need to resolve whether animus towards homosexual acts constitutes a constitutional reason for legislating against gay sex, gay love or gay marriage, we should consider the views of both contemporary and classical political philosophers on the questionable role that disgust often plays in legislating against various crimes against morals (Nussbaum, 2004, 2010a). If we need to know, simply as a matter of policy, how much of our precious shared resources should be devoted to equalizing the educational attainment and opportunities accorded our disabled co-citizens, we would do well to consider, Nussbaum has shown, the writings on human flourishing emanating from various scholars in the humanities from our cultural canon, including Aristotle, John Stuart Mill and Karl Marx, no less than contemporary social scientists and economists, such as, notably, her colleague and frequent collaborator Amartya Sen (Nussbaum, 2006). To take a more local example, if we wish to better understand the importance of individual autonomy to a well-led life, particularly where protecting that value might create spheres of non-interference that adversely impact the equality of others, we should consult the teachings of J.S. Mill, John Rawls and Susan Okin, no less than the writings of the Federalists or the US Constitution's drafters (Nussbaum, 2000, 2008). Likewise, she has insisted, our deepest jurisprudential questions -questions concerning the nature and methods of adjudication, the content of our human and legal rights, the relationship of law to both critical morality and politics, and, perhaps most important, as Ronald Dworkin would pose the issue, the point of law, or of some field of it - all implicate the recurring inquiries which for two millennia have been at the heart of the various disciplines that have come to comprise the humanities: questions concerning the meaning of justice, the fragility of goodness, the nature of the knowledge we glean through reason and experience, but also through love, compassion and sympathy, and, most fundamentally, what it means to lead a flourishing human life (Nussbaum, 1995, 2010b, 2011, 2013a). This list- of both doctrinal and jurisprudential questions that Nussbaum has either demonstrated or argued would benefit from humanistic inquiry- could, in fact, be vastly extended, as the essays in this volume will show. In sum, Nussbaum has firmly but graciously insisted, throughout her engagement with law, that neither the tools of traditional legal scholarship alone, nor those tools supplemented by a dollop of methods borrowed from the social sciences, as is our current practice, can answer either jurisprudential or doctrinal questions. Rather, insights gleaned from a study of the humanities best fills law's gaps. The study of law, at its best, and for just that reason, should be understood as, at least in part, a branch of the humanities.

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An introduction to the impact of Martha Nussbaum's life and writing on legal scholarship, then, should begin just there, with an account of Martha Nussbaum's attempt, partly by dint of her own example but also through argument and advocacy, to reshape legal scholarship- and hence reshape our law- in such a way as to invite the insights and the methods of the various disciplines of the humanities: primarily philosophy, but also the classics and literature. For reasons I will outline in the first section of this introduction, if successful, that attempt is nothing less than paradigm-shifting; re-centring the disciplines ofthe humanities in the academic study of law would profoundly reshape legal scholarship. For well over a hundred and fifty years, since the beginning of the modern law school, legal scholarship in the United States (and to an even greater degree in other parts of the world) has methodologically eschewed almost all reliance on the traditional fields of the humanities, opting instead for a method of inquiry that looks either formalistically only at legal materials for the answers to legal and jurisprudential questions or, over the last four decades, to legal materials supplemented by some modest use of the methods of the social sciences. Against this backdrop of the studied avoidance of humanistic inquiry in the legal academy, Nussbaum's insistence that legal study must centre on the humanities, if heeded, would fundamentally reorient both method and perspective within legal studies, and possibly in law itself. But further, it is also that ambition- to transform the study of law into a branch of the humanities - that shapes her more particular doctrinal and jurisprudential contributions to legal studies. The shift in our thinking on the role of emotions in law, our still begrudging but increasingly firm grasp of the role ofnarrativity in adjudication and scholarship both, our deepening understanding of the centrality of human capabilities to the content of human rights, constitutional rights and sovereign responsibilities all, our various debates concerning the nature of the common good to the promotion of which legal systems should aspire, and our liberal and feminist insistence on the importance of women's well-being worldwide to the health and vitality of our endangered planet, as well as to the quality of our justice, all are presaged in Nussbaum's writings, and her arguments for all of these positions are uniformly steeped in humanistic as well as legalistic methods. Many of these questions, and the more particular ones they imply, can of course be posed as either purely doctrinal or jurisprudential questions, or from the vantage point of the social sciences, or from some combination of the two: how does cognitive bias, itself partly a product of human emotion, affect jurors' judgment? Does human rights law -largely a product of treaties -require liberal states, or all states, to provide a flourishing life for their citizens? Does the US Constitution permit or require states to allow juries to hear victim impact statements or 'antisympathy instructions'? Do such instructions, or statements, have any measurable effect on the deterrence function of the criminal law? All of these questions, though, may also be posed from the vantage of the humanities, and likely should be so posed, and it is to Nussbaum's credit, largely, that we can now see this clearly. The second cross-cutting current of influence underlying the doctrinal shifts occasioned by Nussbaum's writing is theoretical and jurisprudential. Nussbaum's interdisciplinary writings on the nature of justice, on the complex relation between reason and emotions, on the role of narrative and narrativity in the construction of knowledge, and on the meaning and content of human flourishing have yielded, I will argue in the second section below, a distinct and highly original 'normative jurisprudence'- by which I mean a jurisprudential understanding of the law that defines and accounts for the law we have by reference to its moral ambitions, that articulates law's moral aspirations and that provides a baseline for moral criticism of the

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law that falls short. What I will call Nussbaumian 'humanistic jurisprudence' accomplishes all three of these definitional tasks and, as such, constitutes a major and long overdue contribution to our existing family of jurisprudential theories. As I will try to show below, the moral lodestar of Nussbaum's humanistic jurisprudence, whether it is employed as a way of explicating existing law, as a mode of criticizing it or as a way to reconstruct it, is humanity itself. The core insight is that the jurisprudential 'point' of law, to again use Dworkin's helpful coinage, is not utility, efficiency or wealth, as has been argued by modern economic theories of jurisprudence, but nor is it rationality, consistency, integrity or principle, as argued by contemporary Kantians. It is, rather, human flourishing. Law, no less than politics, should and must serve humanity, meaning it must contribute to the creation of a civil and lawful society that increases the possibility that individuals will lead flourishing lives. To do so, it must respect and accord due regard to our collective quest for joint gains in utility and efficiency in our transactions, our societal craving for institutional and state consistency and integrity, and our individual thirst for autonomy. But these are all constitutive of what must be the overarching goal of legal systems, and the jurisprudence that underlies them, everywhere. That goal of law -its point- is flourishing human lives. So, this introduction will assess these two currents of Nussbaumian influence on legal scholarship, and indeed on the legal academy quite generally. The first section assesses the significance of Nussbaum's attempt to effectuate a marriage of legal studies with the humanities. I begin with a discussion of why the relationship between legal studies and the humanities over the last century and a half- since the beginning of the modern law schoolhas been so fraught. I then turn to a description of Nussbaum's (and others') attempt to unite them, and the implications of that effort. The second section provides a skeletal outline of 'humanistic jurisprudence', as developed in Nussbaum's writings. At the core of humanistic jurisprudence is Nussbaum's distinctive understanding of the nature of the legal justice that she believes should guide law-making and adjudication both- a conception of justice which I will call, following her lead, 'poetic' (Nussbaum, 1995). That conception of justice in turn entails four further claims: first, a political and moral claim that our distinctively human capabilities- our capability for human life itself, for emotional and physical health, for intimacy, play and interaction with our natural environment, for security against assault and for control over our political and material worlds - rather than welfare, equality, liberty or utility, are the best measure of the very fragile goodness that is or ought to be law's goal (Nussbaum, 2000, 2011); second, an explicit acknowledgement and study of the role played by emotions in the development of positive law and adjudication both (Nussbaum, 1990, 1995); third, a graceful insistence, in the face of a good deal of bone-headed opposition to the contrary, on the centrality ofnarrativity, and hence literature, to our thinking about moral issues, and therefore the centrality of literature and narrative to adjudication and the capacity for judgment that is at its core (Nussbaum, 1995); and, lastly, the eloquent and indeed near-timeless claim that if we aim with law to promote the flourishing of all human beings, we must include women in that set, an inclusion which might well change our understanding of the nature of human flourishing and the content of the state's duties to promote it (Nussbaum, 1999, 2000). The second part ofthis introduction gives brief accounts of each of the first three of these claims, while referencing the fourth throughout, tying them to the aspiration of poetic justice that is at their core. Throughout the second section, I briefly distinguish humanistic jurisprudence, as well as some of its central

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claims, from our two most prominent theories ofjurisprudence underlying contemporary legal scholarship: the wealth maximizing understanding of justice and law first put forward in the early 1980s by Richard Posner (1981), and the account of justice and jurisprudence centred on doctrinal integrity and historical continuity propounded around the same time by Ronald Dworkin (1977, 1986). Nussbaum's jurisprudence, I will argue, in short, is humanistic, rather than either economic or principled, and is superior to both for that reason. The final section will briefly introduce each of the essays in this volume, with descriptions of the ways in which either Nussbaum's understanding of the inter-disciplinary nature oflegal studies or her various contributions to a humanistic jurisprudence has affected the author's project, or both, and of how each represents, as a consequence, a Nussbaumian turning point in our understanding of the field of law under scrutiny. The Profession of Law and the Disciplines of the Humanities: Unity, Divorce and Reconciliation

By the early 1970s, when Martha Nussbaum began writing on law, legal scholarship, as an enterprise, had almost entirely divorced itself from scholarship in the humanities, meaning not only the canonical works but also the contemporaneous scholarship exploring the meaning of those works, produced by colleagues in the various disciplines sharing the same university campuses as the law schools themselves: philosophy, literature, anthropology, political theory, cultural studies and even, although to a lesser degree, history. 1 By two-thirds of the way through the twentieth century, the implicit - and occasionally explicit - understanding of traditional legal scholars housed in law schools and doing something called 'legal scholarship', as a group, was that the various disciplines that make up the study of the humanities provided no or little guidance on the law scholar's basic questions, which were understood as 'doctrinal', and best resolved through the study of law alone. 2 Legal scholarship, through approximately the first three-quarters of the twentieth century, followed a particular form: what is the law of some particular contested area, and how might it be improved? To take some quick examples: what, exactly, does the 'consideration doctrine' require of would-be contractors, and what should it require? Will any bargain between the two of them suffice, or does it have to be a fair bargain? Is a 'formal' or 'just-for-show' bargain that is intended to signal seriousness of intent to be bound enough of a bargain to 'count', or does it have to be a 'real' bargain that constitutes both an actual and intended exchange of value? To take another example: in the USA, what, exactly, does the First Amendment's protection of speech cover, and why? Is it limited to political speech, or speech of presumptive value, or does it cover all speech? Does it cover conduct that clearly conveys symbolic meaning, or conduct that influences political debate? Does it cover flag burning? Hate speech? Obscenity? Defamation? Money? Campaign contributions? Or: what is a search, for purposes of the Fourth Amendment's prohibition on warrantless searches, and what should it be? Is the massive surveillance and data collection facilitated by the possession of a smart phone, the extent of which is now only For detailed accounts of the history of the split between the study of law and the study of humanities, see Ferguson (1984) and West (1996, 2013). 2 For histories of this 'formalist' claim and the jurisprudence it grounds, or as it is sometimes called 'classical legal thought', see Grey ( 1983), Kronman ( 1993) and Rubin (2007).

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dimly understood by the buying public that consensually purchases and uses all those phones, a massive unconstitutional search of an unwitting public? What is 'income' for purposes of tax law? Does it cover in-kind compensation or non-commodified labour, such as housework? Should it? Some twentieth-century scholarship, of course, casts a broader and more explicitly jurisprudential net. What, again using Dworkin's formulation, is the point of an area of law? Do we have contract law to maximize the wealth that is the natural product of bargains that are actual exchanges of value, or do we have contract law to protect the reasonable expectations of people dealing with co-citizens that their mutual promises will be performed, or enforceable when not, thus strengthening not only societal wealth but also civic bonds? Is the point of a progressive tax system, the enhancement of revenue or is it redistribution of wealth? Is the Fourth Amendment there to protect us from the constable's occasional stumble, or from an overly intrusive state? Does the First Amendment aim to ensure a healthy, because widely informed, political dialogue or a healthy, because autonomous, individual life? All of these questions, both doctrinal and jurisprudential, can be posed in a backward- or forward-looking way, or both: what path has this piece of legal doctrine taken and what path should it take from here out? What are our ideals for it, again, either with respect to a particular field or legal question, or more generally? And, how should we - a purportedly self-governing democracy -construct those ideals? Should we do so by reference to what most of us want from law most of the time, revealed through our preferences, votes and the democratic horse trading (and money funnelling) at the heart of our politics, or should we do so by reference to the wisdom of judicial authorities from our past, whether those reflected in the common law or in our constitutional settlements? Finally, and more generally still, a few twentieth-century scholars pursued questions at the intersection of law and moral or political philosophy. What does justice require of law? How does, and how should, law promote the common good? However these questions were asked, though, and however they have been answered by legal scholars, with respect to both doctrine and jurisprudence, for most of the twentieth century they were most emphatically not answered by turning to the studies, disciplines, canonical works or scholarship in the various fields of studies collectively known as the humanities. This near-universal, consistent and rarely remarked upon twentieth-century avoidance of the teaching of virtually all of the various branches of the humanities by legal scholars seeking to answer doctrinal and jurisprudential questions about law- the 'divorce' referenced above of the study of law and the study of humanities -has a history, the most important lesson of which, by far, is simply that it was not always thus. As Robert Ferguson has shown in his prizewinning study of the period, during what might be called the 'Jeffersonian era' of elite legal education- the late eighteenth century, running through the first third of the nineteenth- it was widely understood by the handful of lawyers who received such an education, that the study of law, at least by those elite would-be lawyers who might later claim the reins of governing the new republic, required not simply an 'apprenticeship' in a lawyer's office into the skills and mores of the practising lawyer, but also, and perhaps more importantly, an intense period of study of virtually the entire body of knowledge available to a 'man of letters', and for the straightforward reason that law itself, in such a republic, was regarded, at least by this elite, as implicating the entirety of human inquiry and knowledge (Ferguson, 1984, pp. 25-28). The would-be well-educated lawyer, then, during his training, was expected to absorb not just whatever positive law could be gleaned through a reading of Blackstone and the Law Reports, but likewise, the philosophical lessons of Cicero, Plato and Aristotle regarding the nature of

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politics, the content of the natural law according to StThomas Aquinas, the understanding of the human psyche to be found in Shakespeare and the poets, the moral lessons conveyed in the Bible and the scientific world-views oflsaac Newton and Galileo, as well as to achieve some mastery of both modern European and ancient languages (Ferguson, 1984, pp. 28-30). To be a leader of this emerging Shining Republic on the Hill, the lawyer-in-training during this Jeffersonian era, Ferguson shows, needed to understand positive law, but in order to do that he needed to be versed in the study of human nature, human and natural history, agricultural sciences, the laws of planetary motion, the teachings of the great philosophers and the wisdom of the poets. Ferguson describes the encyclopedic 'Jeffersonian' law school curriculum that developed to educate just such a lawyer: Thomas Jefferson's more famous lists of readings for law students were a practical demonstration of the science of law reaching toward every tie. Jefferson, like Kent, believed in the universal order law could provide. He divided legal study into units or 'resting places' under the four great systematizers of English law (Bracton, Coke, Matthew Bacon, and Blackstone), and he also found 'history, politics, ethics, physics, oratory, poetry, criticism, etc., as necessary as law to form an accomplished lawyer.' Jefferson's plans of study were virtual bibliographies of the Enlightenment, requiring fourteen hours of reading a day across a five-year period. His students read physical science, ethics, religion and natural law before eight each morning; law (in at least three languages) from eight to twelve; politics and history in the afternoon; and poetry, criticism, rhetoric, and oratory 'from Dark to Bed-time.' The law student's assigned task was nothing less than a practical omniscience in human knowledge. David Hoffman's Course ofLegal Study: Respectfully Addressed to the Students ofLaw in the United States ( 1817) was the standard manual of its kind well into the 1830s; it covered six years of study and opened with The Bible, Cicero's De Oficiis, Seneca's Morals, Xenophon's Memorabilia, Aristotle's Ethics, and a long list of other readings in general literature and political philosophy. Hoffman expected his law student to seek 'that comprehension of expression peculiar to the poet,' and he insisted on the usual litany that 'every species of knowledge may prove necessary.' ( 1984, pp. 28-29)

Obviously, the Jeffersonian curriculum is worlds away from the required first year curriculum of the twentieth- and twenty-first-century law student, who reads contracts, torts, property and civil procedure cases, but nothing on politics of or by Cicero, Aristotle or Plato, nothing on natural law from Aquinas, nothing on law and the human psyche from Shakespeare or the poets, nothing on religion or morality from the Old or New Testament of the Bible or the Koran, nothing on the contractarian or utilitarian foundations of law from John Locke, Thomas Hobbes, David Hume, John Stuart Mill or Jeremy Bentham, and nothing from any of their modern or contemporary counterparts: John Rawls, John Finnis, Robert Nozick, Herman Melville, Karl Marx, Friedrich Hayek, Susan Okin or Thomas Piketty. The writings of these luminaries, whether from antiquity, from the last two hundred years or from our own time, are simply not understood by contemporary legal scholars or educators as sources of 'law'. The scholarship that emanated from law schools, at least at the three-quarter mark through the twentieth century, reflected the same avoidance: outside of ornamental citations and occasional humanistic forays, twentieth-century legal scholars stuck pretty resolutely to doctrinal sources when resolving doctrinal questions. In sum, it is clear from contemporary scholarly as well as pedagogical practice that what we might call the Jeffersonian curriculum, along with its distinctive jurisprudential understanding of the authority oflaw as blended with the authority of high culture, and hence of the study of law as seamlessly blended with the study of canonical cultural classics- what we would today call collectively 'the humanities'

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-was lost, or cast aside, both in its particulars and more importantly in its aspirations, during this period. Thus, the twentieth-century divorce of law and humanities. Why did this happen? According to historians of the era, the divorce of the study (and teaching) of law from the cultural canon dates, basically, from Christopher Langdell's late nineteenth-century invention of the modern law school and the 'case method' as the mechanism for instruction (Grey 1983; Ferguson, 1984; Kronman, 1993; Rubin, 2007). Langdell's signature accomplishment, as is widely acknowledged, was basically to place the study of law in a university-styled classroom, rather than a lawyer's office, using judicial cases as the vehicle for instruction. Less appreciated, though, his second objective, which was at least as fully realized if not more so, was to place those judicial cases, and those cases alone, at the heart of the lawyer's education, and hence at the heart of his professional identity- rather than any set of cultural, religious or philosophical texts. In this, he succeeded spectacularly. By the beginning of the twentieth century, judicial case law had become not just central to but the entirety of legal education. Hence, judicial case law became central to the meaning of law, rather than any seamless web of law and cultural authority, leading to the highly prized 'autonomy' of law from culture, philosophy, literature and religion. Legal scholarship became a staple of the law schools during the half century or so that followed Langdell's accomplishment, and scholarship simply followed the direction set by the pedagogy, eventually reflecting the same turn to adjudicated cases, and cases alone, as both the object and source of scholarly inquiry into law. As a result, from the beginnings of the modern law school through at least the early 1970s -when Nussbaum and a handful of other scholars began to re-open this consensus- the vast bulk of the legal scholarship that emanated from law schools was firmly committed to the project of exploring purely legal answers to purely legal questions, even where- especially where - the law itself was concededly uncertain. The legal scholar faced with what seemed to be an open legal question might have to look at adjacent legal fields, or he might have to more deeply probe the premises of the field from which his question arose. But either way, the law itself, as generally held by the twentieth-century Langdellian assumption, is sufficiently autonomous from other fields of discursive inquiry (as well as sufficiently just) that there is simply no need for recourse to any discipline outside of law for the legal resolution of the question posed. This is in large part what it meant, in the late nineteenth century and through much of the twentieth, to claim law as a 'learned profession': the claim was not that law required an education fit for a learned, Jeffersonian 'man of letters' but, rather, that 'legal learning'- and only legal learning- was sufficient, for the well-educated legal professional, to resolve legal doubt. Although the law school might be housed in the university - thus underscoring that learning and not just training is required for the profession of law - it is nevertheless legal learning that is required: the law school's discipline is academic but separate from the other disciplines the university housed. The discipline of law need not even overlap, much less be subsumed by, that of philosophy, theology, politics or history, all housed on the opposite side of the university's quad. To be sure, and as every first year law student learns, there was a persistent countermovement, or dissenting tradition, throughout much of this period - from 1890 to 1940 or so - to these Langdellian and formalist claims on behalf of law's autonomy and completion, and the implications of both for legal scholarship. The self-proclaimed 'legal realists', a group oflegal scholars and judges that rose to prominence in the early decades of the twentieth century, quite

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famously dissented from the Langdellian view that law, and law alone, is sufficient to answer open legal questions, whether those questions are posed by a judge, a lawyer or a scholar (see generally Cohen and Cohen, 1979). Rather, the legal realists held (albeit for reasons that differed among them) that law itself is replete with gaps. In fact, according to some realist scholarship, virtually every significant legal question can be resolved in more than one way, if one sticks only to legal authorities as source material, simply by virtue of the method of the common law itself. If answering a legal question in a common law system requires essentially resorting to precedent, and that inquiry in turn requires us to decide that a present case is sufficiently 'like' an earlier case so as to be decided in the same way, then the determination of similarity- that this case is enough like that one so that it must be decided similarly- even just logically, must be guided by some non-legal criteria, otherwise the decision is captured by an endless and quite irrational, or mindless, regress. Once one recognizes this - that a system of law dependent upon the application of precedent to current cases through analogical reasoning cannot possibly be a closed system - then it becomes clear that at least judgemade common law is replete with gaps - is almost nothing but gaps - and that those gaps must be filled by some sort of non-legal judgment. It cannot be simply a deduction from rule to instance; the peculiar blend of inductive and deductive reason common to the analogical method of the common law will never be sufficient to answer a legal question. The formalist and Langdellian belief that it is, the realists claimed, was not only wrong-headed but it was so wrong-headed as to be ripe for ridicule: it is built on nothing more substantial than a childlike belief in the supposed solidity or naturalness of human rules, 3 or a counter-oedipal desire to endow legal authority with a benign but paternal certainty and wisdom it can't sustain (Frank and Gray, 1930), or simply a misguided quasi-mystical belief in 'transcendental nonsense' emanating from on high (Cohen, 1935). Rules just do not apply themselves, and therefore, the realists contended, the human application of rules to particulars requires judgment, the criteria for which must come from some source other than those rules themselves. Grown-up and relatively enlightened modern judges should recognize as much, and acknowledge their own considerable discretionary power, rather than reach for a mindless and in any case illusory external authority premised solely on a quest for consistency with past precedent. And what is it to which the deciding judge should turn, then, to fill the gap? If the tapestry of law itself is not sufficient to generate answers to open legal questions, to what source should judges, or scholars, turn? Perhaps to the Jeffersonian curriculum or, more generally, to the culture's authorities on the content of the justice to which law should aim? Well, no. For the most part, the answer the realists proffered to the question 'to what should the judge turn, if law itself does not suffice' was emphatically not the cultural canon of the humanities. Rather, and as argued in Justice Oliver Wendell Holmes' prescient and sweeping essay 'The Path of the Law', from the 1890s, a belief in Langdellian formalism - the completeness and autonomy of the law - as a way of answering legal questions would eventually give way, not to a re-engagement with the humanities, but rather, to a forward looking mastery of the social sciences (Holmes, 1997). Shared social utility is the value towards which law should be aimed (Holmes, 1997), and the judge who seeks to maximize it should be guided in his '[R]ules ... are important so far as they help you see or predict what judges will do or so far as they help you get judges to do something. That is their importance. That is all their importance, except as pretty playthings' (Llewellyn, 1930).

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quest to do so not by whatever wisdom may be encoded in legal precedent, but rather by the light of reason informed by scientific inquiry into the content of the social good and how best to attain it. There is no worse reason to resolve a case in a particular way than that it was so resolved in the time of King Henry IV, Holmes opined, in one of his many broadsides against the twinned rules of precedent and stare decisis ( 1997, p. 100 l ). And what should replace that reliance on precedent, that mindless quest for consistency? In a word: science. The lawyer of the twentieth and twenty-first century, Holmes (1997) proclaimed, would be the man of the slide rule, rather than the man of Blackstone; the master of statistics and economics, rather than of the law reports. The legal realists, who followed him, followed his lead, applying to open legal questions the teachings and methods of the then-nascent social sciences. Thus, while the early twentieth-century 'realists' and the turn-of-the-century 'formalists' disagreed on virtually everything else - they disagreed, that is, on the nature of law, the value of precedent, the role and meaning of the Constitution, the goodness of a laissez-faire economy, the necessity of social welfare nets and the viability of an administrative state- they reached precisely the same conclusion, albeit for very different reasons, on the irrelevance of the cultural canon of the humanities to adjudication and, therefore, the irrelevance of the study of the humanities to a proper and professional study of law. For the Langdellian formalists, the humanities and their discourses were unnecessary: law itself is a discourse that is rich, textured, complete and autonomous, and thus its own discipline. Law alone can provide answers to all legal questions. The point of law is to preserve the settled wisdom of the past, and the way to that is through respect for those legal institutions designed to do so: the rule of precedent, the common law itself, stare decisis, and the analogical reasoning that makes those past rules efficacious in the resolution of contemporary problems. The study of law should be admitted to the pantheon of learning- it is a 'learned profession' we are expoundingbut the heart and content of that learning is Iega!, basically admitting of no other discipline. For their Holmesian legal-realist antagonists, these formalist claims on law's behalf on its completeness and autonomy were just foolish: law itself was decidedly not sufficient; law is riddled with gaps, and many, perhaps most or all, legal questions can only be answered by recourse to some body of knowledge, set of intuitions or source of learning outside the law books. But that body of knowledge, most (although not all) realists held, was decidedly not the canonical authorities of the Western humanist tradition. On this, they followed Holmes. It was, rather, the insights and the methods of the social sciences- the man of the slide rule: not the man of Blackstone, for sure, but also, implicitly, not the man of Aristotle, Plato, Cicero, Newton, Galileo, Shakespeare, J.S. Mill or the Bible either. The law, according to the realists, should be forward-looking in orientation and generally utilitarian in purpose and outlook: the goal should be to maximize the well-being of as many as possible. Law is a tool by which to do so, and the social sciences should guide the judge and lawyer's utility-maximizing legalistic hand when using that tool. The learned lawyer, judge and scholar, then, should master the then-nascent fields of the social sciences, and put his learning, as well as the law, towards that end. He should have no greater need, or motivation, to turn to the learning of the humanities than to Blackstone or the Law Reports. Where law needs supplementation, it should be the social sciences, not the humanities, which provide direction. During the century that followed Holmes' great essay, formalists of various stripes continued to view law as a complete and autonomous system of norms with no need of completion from any source, while realists and their followers have seen the law as replete with gaps, but gaps

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that should be filled by recourse to the social sciences. These poles of debate -formalism on one side, realism on the other- in turn constituted the two extremes around which American legal education as well as legal scholarship and legal theory developed through the course of the century: the various legal educational and jurisprudential movements that came afterwards -the legal process school (Hart and Sacks, 1994; see generally Eskridge and Frickey, 1994), the various secular natural law movements (Fuller, 1966), legal-liberalism (Dworkin, 1977, 1986), critical legal studies (Kelman, 1987) and law and economics (Posner, 1973, 1981) largely organized themselves in reference to one or the other of these polarities. The study of the humanities did not figure centrally as a necessary part of the study of law in any of them. In contrast, then, to the elite study of law in the Jeffersonian era, during which the educated lawyer viewed the authority of law as continuous with the authority from the cultural canon, all of which would guide his leadership of the City on the Hill, the twentieth-century lawyer came to view law as radically discontinuous from the study ofthe humanities- either because, with the formalists, he viewed law as sufficiently complete to require no supplementation or because, with the realists, he regarded law as gap-riddled, but requiring supplementation from the forward-looking, progressive social sciences. Neither was inclined towards the authority of the poets and the philosophers from centuries, and indeed millennia, past. So, in the mid-1970s, when Martha Nussbaum began to take up the study of law, and to do so from a perspective informed by an explicit immersion in the humanities, she knowingly or unknowingly took on board the work of basically turning legal education, legal pedagogy and legal scholarship- by this time a massive and heavily anchored ship- all around. And, she has done it with gusto: energy, intelligence, erudition, personality and flair. Throughout her career, Nussbaum has explicitly and implicitly, both by argument and example, challenged the poles of the formalist-realist debate within the legal academy that has run like theme and countertheme throughout the twentieth century. Formalists, her work suggests, are wrong to think that either law or the study of law is sufficiently autonomous to require no recourse to other disciplines. As discussed below, her fundamental jurisprudential insight is that to adjudicate or legislate requires a deep understanding of the felt quality of the lives of particular others, which neither a judge's purely professional education nor his personal experience alone can generate. That understanding - an understanding of the quality of life of others, who may be removed from us in time, space, culture or class - is precisely the work of the various humanities. Law alone does not generate it. With equal conviction (and more expressly), she has argued that both early twentieth-century realists and their contemporary economicsminded descendants are wrong to think that the knowledge and understanding of the subjective lives of others that is required by the justice that is law's point can be gleaned from an exclusive engagement with the social sciences, meaning, today, the sciences ofbehavioural and classical economics. Rather, Nussbaum has argued and demonstrated repeatedly, law is itself a humanistic undertaking, as should be its study. The good jurist, the good lawyer and the good legal scholar all do or should recognize this. Of course, she has not been entirely alone in so claiming. She has not been labouring to turn this ship around single-handedly. In the mid-1990s, Stephen Breyer stated without equivocation in his confirmation hearings for the Supreme Court that he had much to learn, as a jurist, about the internal lives of people far removed in time, geography or class from his own upbringing and social milieu, and he noted in particular the writings of Jane Austen as providing a path out of his ignorance (Nussbaum, 1995, p. 79). Nussbaum heartily

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concurred: she prominently cited and quoted Justice Breyer, and his remarks on Austen, as sympathetic authority in Poetic Justice, her book length treatment of the nature of the empathic understanding of distant others that is facilitated through great literature and that is or should be a part of the aspirationallearning and training of jurists (1995, p. xvi). Among several others, Richard Weisberg (1992, 1984, 1987) at Cardozo Law School, Peter Brooks (1996, 2000) at Princeton and James Boyd White (1973, 1984, 1985, 1990, 1994, 1999, 2001, 2006) at Michigan have also spent much of their careers trying to open the door to literature and literary classics as primary sources for legal scholars, and any number of critical race theorists and feminists have done likewise with respect to narrative theory (Delgado, 1995, 1998; Delgado and Stefanic, 2001; Williams, 1991, 1995, 1998). As a result of all of their labours, the humanities began to make inroads into the legal academy, particularly in the 1970s and 1980s, such that by the end of that period, a recognized 'law and humanities' movement had unambiguously taken hold in law schools. The nature of the interpretation of texts emerged during that time in both law schools and literature departments as a subject of interest and debate, as scholars in both fields began to realize the centrality of interpretation to both domains, and worthy of study in each (see Fish, 1989, 1995, 1999; Levinson, 1988, 2006, 20 12; Michaels, 1982, 1987). During the 1980s and bleeding into the 1990s, legal ethicists in particular began to suggest that novels and plays -Remains of the Day (lshiguro, 1989), A Man for All Seasons (Bolt, 1960), To Kill a Mockingbird (Lee, 1960) - no less than professional codes of ethics and maybe quite a bit more than those codes -might have something to teach regarding the nature of loyalty, particularly to employers and clients (see, for example, Shaffer, 1981; Wendel, 1995). 'Law and Literature' courses multiplied in law schools from approximately the mid-1970s to the present, as have various 'reading lists' of both great fictional treatments of law and scholarly treatments of that fiction. Scholarly organizations, such as the Association for the Study of Law, Culture and the Humanities 4 and the Law and Humanities Junior Scholar Workshop, 5 were born in the 1990s, and a number of interdisciplinary 'law and humanities' journals were formed during the same period, all of which continue to thrive. 6 Scholars from the various fields of the humanities - not just philosophy but also literature, cultural studies and qualitative sociology and anthropology increasingly coupled their training with a law degree and entered law teaching, infusing their pedagogy and their scholarship with knowledge and discipline drawn from their training in the humanities. Nussbaum has deepened and applauded all of these efforts, contributing her own interpretations of various literary classics as well as her own theories of narrativity and its role in law to the growing stock of canonical law-and-literature studies (Nussbaum, 2013b, 2014b). She has also contributed to the institutional work. She responded, for example, to the uptick in interest in the jurisprudence to be found in the literary canon by convening biannual The Association for the Study of Law, Culture and the Humanities, http://www.law.syr.edu/ academics/centers/lch/main.html. Law and Humanities Junior Scholar Workshop, Columbia Law School, http://web.law.columbia. edu/law-culture/law-and-humanities-junior-scholar-workshop. See generally Solove (2014). Law & Literature is published by University of California Press in Berkeley, California on behalf of the Cardozo Law School in New York City; Yale Journal of Law & the Humanities; Law, Culture and the Humanities is published by the Association for the Study of Law, Culture and the Humanities with sponsorship from Griffith University (Australia) and Amherst College (USA).

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conferences at the University of Chicago to bring together scholars and jurists on wellspecified topics: Shakespeare and the law, the law and literature of early twentieth-century America, the law and literature of the nineteenth-century British narrative classics, the law and jurisprudence of crime novels, and so on (Cormack, Nussbaum and Strier, 2013; Levmore and Nussbaum 2014 ). Perhaps uniquely among the growing numbers of' law and humanities' scholars, Nussbaum has explored and contributed to virtually all of the different paths the 'law and humanities' movement has taken: the exploration of the teaching of the classics for our contemporary legal dilemmas, the role of narrative in judging, the import of great realist fiction for perennial legal and political problems, and the exploration, in the humanities and law both, of the various roles of emotion, sympathy, imagination, disgust and fear in the development of the moral sense, including a sense of justice. The scope, depth - and audacity - of Nussbaum's scholarly and pedagogical ambition, however, throughout this boom period for law and humanities interdisciplinary study has set her apart. Nussbaum's aim has decidedly not simply been to plead for recognition of a new course- 'law and literature', 'law and humanities', 'law and culture' or 'law and fiction'- in a menu of electives that law students might take, or a new 'law and' interdisciplinary field to proffer a humanistic complement to the existing list of interdisciplinary fields of study in law and the social sciences, or for library space for a new interdisciplinary journal. Nussbaum's goal, rather, has been to establish a new understanding of law itself: an understanding of law as in service of humanity, and for its study, accordingly, as resting, perforce, on the study of the humanities. To return to Dworkin's foundational jurisprudential question, the 'point' of law, Nussbaum has urged, is humanity, and the 'humanities', therefore, is the requisite body of knowledge on which its achievements must rest. Nussbaum, perhaps alone of the law and humanities scholars, wants to reclaim the study of law, as well as its practice, as a branch of the humanities. Her goal has been to reintroduce, with appropriate updates and a heavy dose of democratization, the humanistic Jeffersonian model of elite legal training, lost to us for well over a hundred years, to the contemporary lawyer, and hence the cultural canon as central to law itself. She wants to reverse the tide of this century-long divorce and to remarry these long-estranged partners. That attempted union- the marriage of the study oflaw and the study of the humanities, of legal authority and the authority of the great canonical texts - as well as the construction of a distinctively humanistic jurisprudence that undergirds it- is the goal against which her efforts should be understood. It is also the standard by which they should be assessed. 'Ah Bartleby! Ah Humanity!' Towards Humanistic Jurisprudence

Martha Nussbaum's quite original contribution to legal scholarship - a 'humanistic jurisprudence'- begins with a distinctive theory of legal justice, by which I mean the justice at which adjudication is aimed - and which, following her lead, we might call 'poetic' (Nussbaum, 1995). I won't attempt a definition, but 'poetic justice', as she uses the phrase, can be described partly by reference to what it is not. First, the measure of poetic justice the determination, or calculation of whether a legal decision promotes justice, as Nussbaum presents it - is neither wealth nor efficiency, as has been claimed for a family of economic theories of legal justice, most prominently by Richard Posner ( 1981 ). The justice or injustice of a judicial decision, for example, is not a function of whether it increases the collective

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wealth of the society or the collective wealth of the parties before it. Nor is it, more broadly, a matter of increasing benefits over costs, or gains over losses, or fulfilled over frustrated preferences. It is not a function of whether it serves any such economic proxy for utility, no matter how defined. Poetic justice, in other words, is not just non-Posnerian but also non- and anti-Holmesian. The lawyer of the twenty-first century, Nussbaum can be taken as saying, is decidedly not the man of the slide rule empowered by mastery of the social sciences to use every legal system, law or legal decision as a tool to increase societal utility, anymore than the lawyer of the twentieth was the man ofBlackstone. 7 But nor is the justice of a decision, law or system a function of 'principle', or of its integrity with the past- as has been claimed implicitly by any number of more deontic or Kantian-minded legal scholars, but most explicitly and most persuasively by Ronald Dworkin (1967, 1977, 1986). Legal justice is not simply, or even in part, a matter of continuity with past political and legal settlements of a nation's history. A decision can be entirely principled in this Dworkinian sense -can be consistent with precedent, treat likes alike, be fully predictable and have a full dollop of institutional integrity - and nevertheless be manifestly unjust. Legal justice is not simply a 'matter of principle', any more than it is a matter of efficiency or wealth. Rather, Nussbaum suggests in her shortest book, Poetic Justice, the measure of the justice of a particular legal judgment is and ought to be whether or not it contributes or detracts from the flourishing of the human beings that are affected by it. Attempts at justice from any source -legislative, executive or judicial- ought to be measured by the quality of human life those decision-makers promote. The same is true of the legal justice that is the lawyer's province. Legal justice is not a function of either wealth or principle. A legal judgment, no less than a law or legal system, that promotes human flourishing is just, while a judgment, no less than a legal system or a law, that thwarts it is not. Nussbaum's account of poetic justice fills an important lacuna created by the dominance of Posnerian and Dworkinian - and more broadly utilitarian and Kantian - theories of legal justice, the two understandings of justice that still dominate in the legal academy today. Both Dworkin's and Posner's conceptions of justice - one defined by principle, the other by efficiency - in different ways and for different reasons de-centre, marginalize or simply disregard the flourishing of citizens - or of humanity - as a criterion of the justice they each define. Therefore, to different degrees and in different ways, both champion non- or even anti-humanist conceptions of the virtue they each assert as the point oflegal decision-making. First, a decision that raises, in Posnerian fashion, utility or wealth, either of the society or of those affected by the decision, in the utilitarian or economic manner advocated in different ways by Holmes and Posner both, may or may not contribute to the flourishing lives of the citizens affected by it. 8 The way to increase societal well-being, according to twentiethcentury utilitarianism and welfarism both, is to maximize the number of fulfilled preferences, as those preferences are behaviourally manifested in choices expressed in markets, all on the assumption that we will choose what we prefer, that we prefer what we desire and that we desire what will be in our ultimate best interest. All of those assumptions, however, are questionable and over the last twenty years have been subjected to considerable sceptical

(1985).

This is most clearly revealed in Poetic Justice (Nussbaum, 1995). For full arguments to this effect, see Adler (2012), Elster (1983), Kelman (1979) and West

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cnt1c1sm: it's not at all clear that our market-based choices even reflect what we prefer, much less that we always prefer what we desire or that we desire what is in our best interest. Sometimes we choose between options generated by markets not on the basis of our own preferences but on the basis of what we think someone else more powerful than us might prefer, or might wish us to prefer. Sometimes, in other words, we choose so as to satisfy the preferences of others. And even when our preferences are 'our own', sometimes we prefer not what we want, but what we think we should want or what we think others want us to want. And sometimes even our own desires may be clouded from us by the influence or power of others. An understanding of social utility that is tied to the maximization of individual preferences will be tilted, and sometimes fatally so, in favour of the spectrum of existing forces that in part determine the preferences and desires we only shakily hold. A conception of justice that is tied to an understanding of utility, which is in turn tied to the maximization of satisfied or satiated preferences, will likewise be overly committed to those same forces. Like utilitarian conceptions of justice, poetic justice - a conception of justice as measured by human flourishing rather than satisfaction of preferences or the maximization of wealth - is centrally concerned with the quality of human life, but unlike at least contemporary versions of economic-based theories of utilitarianism it is tied to neither wealth nor preference maximization as proxies for individual well-being. Human flourishing is simply not, definitionally, furthered by fulfilment of individual preferences. For any number of reasons, our preferences may not be the best guide to what will promote a flourishing human life. Autonomy and self-authorship are a part of a flourishing life and, accordingly, for familiar liberal reasons, the well-defined adult preferences of competent persons deserve respect. But they deserve respect for substantive reasons focused on autonomy, not definitional reasons which collapse the distinctions between desire and interest, wealth and well-being, and the satiation of preference with a flourishing life: a flourishing life is one in which adult, wellformed preferences are reasonably tied to well-being and therefore should be respected, not because they are definitionally collapsed with well-being, but because they are reasonable, not absolute, guides to the well-being of healthy human beings. Preferences should be respected, but not definitionally and not absolutely. Justice is promoted when people flourish, not when their preferences are satiated. Dworkin's understanding of justice-as-integrity is not subject to any of the problems that plague economic accounts of justice: justice, understood as integrity, is not tied to the satisfaction of preferences, through markets or otherwise, nor to any other measure of social or individual utility. Dworkinianjustice-as-integrity looks not to societal well-being but rather to the uprightness of the legal system of which a law or decision is a part: a decision or law is just, if it is consistent, in a principled fashion, with the best, meaning most moral interpretation of the law that surrounds and precedes it (see Dworkin, 1986). A law or decision that is inconsistent or unprincipled lacks integrity and is unjust; a law or decision that is consistent, by contrast, is just. Surely, though, a just law, so defined, can be cruel, inhumane or simply undermining of well-being, whether understood as happiness, satisfaction or flourishing. A system can be procedurally upright but not conducive to human well-being, as H.L.A. Hart (1958) noted in the 1960s in his critique of Fullerian understandings of procedural justice. More broadly, any conception of justice as requiring, at its core, systemic, principled consistency, whether Dworkinian and integrity based or Fullerian and procedural, might be fully just on such a criterion yet inhumane. It centres the integrity of the system, rather than

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the well-being of law's subjects. Again, Nussbaum's poetic justice fills the lacuna. Procedural rectitude or Dworkinian integrity may be components of legal justice but they can never be sufficient; a law or a decision to be just must also be conducive to human flourishing. Poetic justice is thus a distinctive understanding of what justice requires of a legal decision: it centres human flourishing as the test of the decision's goodness, rather than wealth, as measured by the sum total of preferences satisfied through free markets, or principled consistency with the past, as measured by a reasoned assessment of precedent. Bluntly, it places humanity at the core of the quest for justice, rather than either markets and the preferences they satisfy or systems and the rules and principles they rationalize. This does not imply that efficiency and principle have no place. A flourishing life is one in which, in part, preferences are respected and to some degree satisfied, and one in which the force of the leviathan that holds so much power is exerted in predictable, meaning principled, ways. But it is the flourishing human life, and not wealth or principle, that is the sine qua non of the justice of law. Held preferences may usually, but do not necessarily, constitute a reliable guide to flourishing, and they should accordingly be respected but not held sacrosanct. Abidance with precedent and the settlements of the past contribute to the stability of a system and are a part of a flourishing life, but again this is contingently true, not absolutely. To the extent that principle contributes to injustice, the security of maintaining it might be simply outweighed by its substantive injustice. Poetic justice is accordingly a distinctive understanding ofthe demands ofatleast adjudicative law. What should guide judicial decision-making is a concern for human flourishing, which in turn requires some adherence to precedent, so as to ensure some stability, and some respect for people's held preferences, largely so as to protect individual autonomy. But it is human flourishing, not the wealth generated by markets or the principled integrity that is a feature of well-functioning systems, that is the heart of poetic justice. It is therefore human flourishing, not wealth or integrity, that is and should be the point of the law that promotes it. Capabilities

Let me now turn to the more particular jurisprudential claims of which poetic justice is generative. Although Nussbaum has never schematized it in this way, we can identify three central jurisprudential positions, all of which are prompted by the core claim that human flourishing, rather than either efficiency or principle, is at the heart of legal justice. First, of what does human flourishing consist? What is it to lead a flourishing human life? Second, how do we know what a flourishing life requires, either generally or more particularly, when faced with issues where the foundational principles seem to suggest different answers? What sort of programmatic study, and what form of reflection, should a judge, scholar or lawyer undertake to hone a sense or intuition of justice? And third, what are the relative roles of reason and emotions in understanding the demands of justice: demands made of a judge, of a liberal state or of a citizen, either of a state or of the world? On the first question- what is a flourishing human life- Nussbaum has been very clear: to lead a flourishing human life, Nussbaum has argued, following Amartya Sen's lead and often in collaboration with him, means to be in possession of a set of basic capabilities that define what it means to be human (Nussbaum, 1988,2000, 2011; Sen, 1985, 1999, 2004). In a departure from Sen's approach, however, Nussbaum has now long argued that a flourishing

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life is one in which the individual is possessed often basic 'capabilities' that render human life distinctive and valuable, which, unlike Sen, she first identifies and then discusses at length in her hundreds of articles and dozen or so books devoted to the topic (Nussbaum, 1988, 2000, 2011 ). Again, there are ten such capabilities. First, the flourishing life is one in which the individual has the ability to live a full life of normal length and to its natural end. Second, a flourishing life is one in which the individual has the ability to enjoy good health, including reproductive health, with adequate nourishment and shelter. Third, the flourishing individual has the capacity for bodily integrity, meaning freedom from violence and fear of violence, including sexual assault, the freedom to move freely from place to place and the freedom to enjoy opportunities for sexual satisfaction without fear of reprisal. Fourth, the flourishing individual has the ability to use her mind freely, including the ability to use all of her senses, her imagination and thought, and in a manner cultivated by a good education, enhanced by literacy and numeracy, as well as the ability to participate, as producer or consumer or both, in a society's cultural achievements and challenges. Fifth, the flourishing individual has the ability to enjoy an emotionally rich life, including the ability to form attachments to things and people, and the ability to love and be loved in a nurturing and safe environment. Sixth, a flourishing individual enjoys the ability to form a conception of the good life, including the ability to engage in religious life and conscience. Seventh, she or he has the ability to affiliate with others, which includes both the ability to socially interact, to empathize with others and to engage in political deliberation, as well as the ability to interact and work with others in a way that is respectful of basic dignity, is non-discriminatory and not humiliating. Eighth, she or he has the ability to live with concern tor and in relation to animals, plants and the world of nature. Ninth, she or he is able to laugh, to play and to enjoy recreational activities. And tenth, she or he has what Nussbaum calls the ability to assert 'control over one's environment', which in turn has two components, one political and one economic. Politically, it means that she must be able to participate effectively in political choices that govern her life, which in turn implies that she must possess rights of political participation, free speech and association. Economically, it means that she must be able to hold property (both land and movable and on an equal basis with others, as well as the right to seek employment, and an equal basis with others. She must be able to work in such a way that practical reasoning and in an environment that nurtures meaningful relationships of mutual respect and dignity with other workers (Nussbaum, 2000). Significantly, it is not only judges that should aim to protect and further human flourishing in their legal decision-making. Human flourishing is not only constitutive of legal justice. It is also, although in different ways, constitutive of social justice. Therefore, Nussbaum has argued in a number of writings and lectures 9 that all liberal democratic states are morally obligated to promote these basic human capabilities. Sometimes, this means simply that the state should not interfere with the natural flowering of the human capabilities central to flourishing. The state should not, for example, censor religious or political views, be overly intrusive into family life, criminalize various forms of sexual expression, prohibit subgroups of the population from moving freely in various areas of the country or impede reproductive choices, including the choice to abort a pregnancy (Nussbaum, 2000, p. 90). The ability to But most explicitly in her Storres lectures titled Women and Human her Harvard Supreme Court Foreword, later published as Capabilities (201 I).

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form a conception of the good life, to participate in politics, culture and the arts, and to enjoy reproductive choice and sexual expression, for example, are ideally best nurtured by families, religious organizations, private parties or civic organizations, and when they are functioning healthily the state best protects those capabilities by protecting the integrity and privacy of those entities and otherwise absenting itself from their development. This much of the capabilities approach to social justice, in other words, is largely compatible with a liberal conception of state minimalism, as well as a liberal legal conception of the negativity of constitutional rights. Some, though, and maybe most, of the capabilities Nussbaum has identified as central to the flourishing of individual life require considerable affirmative acts on the part of states, and a liberal state that recognizes its obligations to promote them will accordingly act affirmatively to do so. An adult individual will not possess the ability to form emotional attachments without the benefit of a healthy upbringing in a secure familial environment, and unless that environment is protected against assault, and theft, and disabling poverty, and unless the individuals within it are protected against internal abuse from each other, that capability will not be developed. Likewise, the ability to participate in culture and the arts depends upon a decent education, provision for which, beyond a scant few, must come from the state. Protection against both criminal violence and disease requires an active state committed to the provision of both a police force and health services, as a matter of right. Participation in a meaningful cultural life of artistic and political achievement may require subsidy of cultural products and the means of their distribution. Control over one's material environment and the dignified work necessary to achieve it requires considerably state intervention into labour markets to correct for not only discrimination of wrongful sorts but also exploitation of vulnerable workers. A dignified life of ordinary duration and health will require for the weakest members a safety net of support for food, shelter and clothing. The enjoyment of health, including reproductive health, obviously requires considerable state involvement in the provision of health services as well as interruption of cultural or traditional practices that might deny them. The capabilities approach, then, clearly requires of states more affirmative duties than is required of anyone by the US Constitution, and more than is required of most liberal and neoliberal theoretical understandings of what states owe their citizens as well. The US Constitution, at least as interpreted by the US Supreme Court over the last half century, requires only that states protect citizens' so-called 'negative rights' against undue interference with their private lives, rather than 'positive rights' to welfare, education, health and so on. 10 Nussbaum's approach clearly requires more. It also, though, and as she has recognized, requires more of liberal and democratic states than is expected of them by various human rights treaties and by the light of most countries' own constitutions, although in some cases the gap is narrower: both the human rights tradition and at least some constitutional traditions in other countries (notably South Africa) now require of liberal democracies protection of at least minimal welfare rights guaranteeing the terms of subsistence, and often times considerably more, if only aspirationally. 11 The capabilities approach also, though, requires more of liberal states 10 DeShaney v. Winnebago, 489 U.S. 189 (1989); San Antonio Jndep. Sch. Dist. v. Rodriguez, 411 U.S. I (1973). 11 Nussbaum briefly discusses the differences between her own capabilities approach and the human rights orientation of public international law inN ussbaum (2000, pp. 96--l 01 ).

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than what is required of such states by various competing theories of social justice. It clearly requires more than is required by a welfarist approach to state obligations that focus on either wealth or satiated preferences as setting goal lines of aspiration, 12 and, of course, it is worlds away, in aspiration, from the night-watchman understanding of a state's obligations implied by neo-liberal and libertarian traditions (cf. Hayek, 1944 and Nozick, 1974). Nussbaum has done little to address the gap between the aspirations of the capabilities approach to the actual obligations of liberal states, as evidenced by those states' constitutions, their foundational documents or their practices, and, with the exception of her extensive work on Rawls (Nussbaum, 2000), she has done little to address the gap between her own approach and that of welfarist, liberal or libertarian understandings of social justice. She has likewise shown little interest in spelling out how the capabilities approach might be more than aspirational, and even that only for a very select minority of liberal states, beyond expressing the hope that others - constitutional lawyers, legislators, treaty and constitution drafters or the architects of modern human rights law - will in some way concretize these obligations into some sort of binding legal code (Nussbaum, 2000). What she has done, though, is considerable. Most important, although there is now widespread interest in numerous fields - including macro-economics, the economics of development and human rights law- in the 'capabilities approach' as a way of measuring national well-being, Nussbaum is the only leading political theorist to offer a detailed conception of the content of a capabilities approach to human welfare. She is the only 'capabilitarian', as the position is now sometimes called, to move from an insistence on human flourishing as the point of law and justice both, and of capabilities as the essence of flourishing, to a detailed articulation of what the human capabilities that must be nurtured might be, in order for a human being to flourish. She is also the only leading political theorist, again within the capabilitarian approach, to put forward the philosophical grounds for such a conception. States, Nussbaum argues, or at least liberal democratic states, have an obligation to promote the well-being of their citizens, or those whom their actions affect, for familiar and liberal reasons: states owe citizens their equal regard and respect, and that requires promotion of their well-being beyond what could be achieved either individually, through contract, or through civil society. What Nussbaum distinctively adds, is that the citizen well-being which states are obligated to nurture must be understood as referencing the degree to which citizens lead flourishing lives. Thus, it is whether a person subjectively enjoys an objectively flourishing life that counts towards an assessment of the justice of a state and not her relative wealth, standing or status. Put negatively, a person's wealth, stature, status and so on is not the measure of whether or not she is flourishing; flourishing is a function of our felt lives, not of our objective accomplishments. At the same time, Nussbaum has made clear, the content of what it means for an individual to 'flourish' must be understood by some objective light, and not by an individual's own selfreported preferences or the degree to which those preferences are satiated, on free markets or otherwise. Satiated preferences are not a reliable measure of well-being, and for now wellrehearsed reasons: a person's preferences will be influenced, formed, stunted or deformed by their available choices and their self-conception, by what they regard themselves as entitled to, by what they have been taught to expect from life or what they regard as their due. Likewise, 12 For a good discussion of the relationship between Nussbaum's capabilities approach and various welfarist conceptions, see Adler (2012).

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the understanding of what it means to flourish can also not come from culturally authoritative sources, such as a society's political or religious leaders: such persons or entities may or may not have their subjects' interests at heart and even if their motives are pure, they have no privileged access in any event to the knowledge necessary to understand it. The content of human flourishing, then, is not a function of authoritative pronouncement, satiated preferences or external indicia of well-being such as accumulated income. Human flourishing is, rather, a matter of possessing the capabilities that render human life distinctively human and fulfilling: a lively mental life, sociability, health, education, the capacity to formulate a conception of the good life, a modicum of control over one's physical environment, meaningful and decent work, political engagement, engagement with play, animal life and nature, and so on. An individual who possesses these capabilities, and exercises them according to her own choices, is flourishing. An individual who does not possess these capabilities is not. A state that creates the social architecture that in turn permits the nurturance of these capabilities is acting in accordance with its moral obligation towards justice. A state that does not do so is unjust. N arrativity

How do we learn moral truths? More specifically, how do we come to know the distinctively human capabilities? How can we adjudge the wisdom of Nussbaum's own accounting of them? How should the officials of either a liberal or a developing state, convinced that its obligation is to create the social structures that will encourage or promote human capabilities, come to know what those capabilities are? How do we know that human beings must have the ability to live a healthy life of ordinary duration, be able to play and interact with nature and other species, have control over the physical environment, enjoy an emotional life and intellectual freedom, and so forth? How should a judge, likewise convinced that the judicial role should be, in part, to fill lacunae in the law by reference to human flourishing, come to understand what those capabilities might be? How should a scholar, interested in assessing the well-being of an individual or a society, or a legislature interested in passing laws that might do so, proceed? Nussbaum's response: it is not through measurement alone, and nor is it through argument or principle alone. Rather, one must listen to the stories of the lives of others, reflect on them, discuss them, compare them with one's own stories, and move from that understanding, gleaned through sympathetic engagement with narrative, to general principles. Narrative, then, although not sufficient for the sort of moral knowledge required by the capabilities approach, is inescapably necessary (Nussbaum, 1995, pp. 1-12; 2000). Justice Breyer, she notes, was on firm ground to point to the knowledge he gained through a reading of Jane Austen: it is through both realist fiction and formal and informal biography that we learn both of the particularities of the lives of others distant from us and of universal commonalities (Nussbaum, 1995, p. 79). Nussbaum illustrates the point in Poetic Justice with detailed readings of Dickens' Hard Times and Richard Wright's Native Son- the former, to illustrate how a utilitarian calculus - the cost of a possible industrial steamship's accident versus the lost profits the industry would sustain by avoiding injury or loss of life by not launching the ship - can grossly understate by not attending to the magnitude of harm of the loss of a life (1995, pp. 13-27), and the latter, to illustrate the magnitude of the harm done by societal injustice on an individual's ability to discern and act on moral sentiments (1995, pp. 93-97).

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Both novels, then, depict something true about human capabilities. In Hard Times, she argues that Dickens shows through his character Sissy Jupe that the capability to live a life of normal duration is central to flourishing, and that the liberal state has a duty to promote it and not trade it off for a corporation's potential profits (Nussbaum, 1995, pp. 25-27). In Native Son, we see an individual whose capability to form moral emotions has been thwarted, in part because of a lack of healthy familial ties and in part through a lack of societal respect (Nussbaum, 1995, pp. 93-95). That capability to form and act on moral emotions is equally central to human flourishing, and the state has a duty to protect that capability as well, in part through protecting family life and in part through non-discrimination and anti-discrimination laws. Each novel then reveals a weakness in dominant theories of justice: the former shows how a utilitarian calculus runs roughshod over particular human lives and values, and the latter, how deontological theories of moral responsibility are non-responsive to human frailties that are themselves a product in part of societal injustice. By entering the lives of characters, we perceive the world through their eyes: through their injuries, their abrasions and their wounds, through their pleasures, ambitions and pains, through their aspirations and frustrations, we come to acquire, brick by brick, so to speak, a solid albeit secondhand understanding of what it means to be human, what it means to flourish and, through the sliver of participation facilitated by our capacity for empathy, what it means for an individual to suffer. We come to acquire as well a due scepticism regarding the utilitarian or deontological conceptions that morality and law both ignore particularity. The positivistic 'list' of human capabilities which Nussbaum has insisted is constitutive of human flourishing worldwide (2000, 2011) is itself a product of knowledge gained through narrative (2000, pp. 78-82). The capabilities on which she insists are those capabilities necessary to live a fully human life- not an American life, or a Canadian life, or a Northern European life, or a middle-class life, or a heterosexual life, or a masculine life, but a human life. The capacity to enjoy culture, to create a conception of the good life, to play, to enjoy nature and animals, for autonomy and so forth are central to human life, and to humanity, not to a nationalized conception of it. To minimize the obvious risk here of a sort of cultural imperialism, Nussbaum argues, requires two things, which she has attempted in her own work to model: first, it requires an immersion in the cultural texts of the world's great traditions, not only one's own, and second, it requires an ability to hear, and then discuss, debate and distil the stories of people in radically divergent circumstances. Women and Human Development accordingly begins with the stories of two impoverished Indian women in particular (Nussbaum, 2000, pp. 15-24). It is through first hearing and then appreciating and interpreting their stories, Nussbaum argues, that the listener can begin to move towards a defensibly universal claim regarding what is and is not necessary for human flourishing. Their stories, and others like them, convey the peculiarly human connection to tradition, along with the peculiarly human longing for liberation from it; the desires to belong as well as to transcend, the tolerance of oppression when it is the price for the pleasures and comforts of familial life. The outsider, particularly an outsider steeped in a Western tradition that values, and perhaps overvalues, individualism, liberty and transcendence, might never fully grasp the meaning of traditionalism, and particularly traditional forms of authority, in the lives of persons from other cultures. But one can go a considerable way towards closing that gap. Listening to stories, and valuing the narrative voice that conveys them, is the first step towards doing so.

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There are dangers in this route to knowledge, which Nussbaum acknowledges and partly, albeit perhaps not fully, addresses. Knowledge of the flourishing of others gained through sympathetic engagement with their lives, facilitated by either realistic fiction or biography, is virtually by definition partial. One gains insight into the perspective of a particular other, but not so much the perspective of those particular others who may be in conflict with that person to whom one is so closely attending, whether in political life or in the context of an adjudicative hearing. Narrativity, in other words, may broaden sympathetic capacities, but it does so in an avowedly unprincipled and always particularistic way. That limitation -that the knowledge gleaned through narrative is partial- suggests that the judgment to which it might give rise looks dangerously partial, and particularly in adjudicative contexts: knowledge gained through narrative might prompt understanding and identification with one side of a dispute, but not the other, depending on whose story has been well told. More broadly, and more worrisome still, inside or outside a courtroom or a legislative hall, narrative knowledge seemingly privileges those who have the voice and the megaphone to amplify their stories, and not so much those without. Thus, the partiality of narrativity looks fatal to the larger political ambition of the capabilities approach as well: just as the judge or juror overly swayed by a narrative might be led towards an unjust result, so the political philosopher, overly swayed by a story, might be led towards a less than universalist, and indeed imperialist, conception of the 'human', and hence of the 'human' capabilities central to flourishing. How can we possibly conclude, after attending for a stunningly short period of time -the three minutes or so it takes to read them- to the life stories of two Indian women, that the conception of the human, of flourishing and ultimately of capabilities that we have constructed on their backs, so to speak, reflects humanity? Why doesn't it simply reflect the yearnings of two Indian women, as seen through the partial eyes of a Western liberal philosopher? The worry can be stated more broadly still. Literature, and the empathic bonds it creates, can spawn an extreme identification with one's own pre-existing groups, a cultish tightening of the social circle of concern, a heightened solicitude for the pains and injuries of those just like us, and an intensification of the vilification of those who are different or far-flung. Occasional and brief forays into the narratives of distant others doesn't seem to fundamentally alter that fact. It seems clear from our history with the discipline, and with the pastime or recreation, that literature, both high- and low-brow, can be a spur to fascism just as readily, and maybe even more readily, as it can be a spur to an ethical cosmopolitanism, or democratization, or a greater solicitude for those outside our family, clan or nation. It can create or underscore a sense of identification between reader and protagonist based on shared experiences, ethnicity, faith traditions or race that can viciously turn the world's inhabitants not into a brotherhood of man, knitted together by shared stories, but into a world of kikes, japs, niggers, white trash, bitches, fags and whores- and it can destroy just as readily and just as predictably as it can create a sense of universalism that transforms the reader's perception of the world into a rainbow coalition of the dispossessed. It can reinforce pre-existing world-views, rather than unsettle them where they could use some unsettling. From these dangers, critics ofnarrativity in legal reasoning quickly conclude that literature, and particularly great literature, may have its proper and even civic-minded place in the context of an academic curriculum, where its contents are tightly monitored, and in culture, where it can be consumed for pleasure or edification, but has no proper place in politics, and certainly no place in law. Legal thought especially should proceed through a rational exploration of principles. The sort of knowledge,

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and certainly the sort of reasoning, facilitated by literature, or narrative, not only has no place in law but should be quite actively eschewed- it should not be employed, but guarded against. How does Nussbaum respond? Partly with her life's work. It is the work of the humanities, very broadly, to construct an understanding of the human that reaches for the universal, and there is no escaping the need, when engaging in this work of reaching for the universal, to comprehend, assess and cull the particular. There is, then, likewise, no escaping the need for narrative; it is simply the only way to proceed. We accumulate, bit by bit, a network of stories, a few hundred over a lifetime, many thousands over a millennia, with which we weave our understanding of ourselves (Nussbaum, 2000, p. 266). In Poetic Justice, she gives an explicit, although incomplete, response, and it rests on a characteristic turn to discipline within the humanities: care, of course, must be taken in deciding what to read, what to recommend, what to encourage. A turn to literary culture in jurisprudence, no less than that culture itself, needs care, nurturance and attention, but it also requires discernment; a call for narrative, as a necessary component of moral knowledge, is not a call for any narrative, unfiltered by judgment. There is clearly more that should, and could, be said, in defence of narrativity in political and legal judgment, much of which will be taken up in the essays in this volume. Two points, though, should be at least noted here, at least with respect to the role of narrative in legal reasoning. First, narrative is both necessary and pervasive in legal reasoning; it is not something we can possibly expel by a wilful turn towards either efficiency or principle. Legal principles often rest on some sort of narrative, albeit oftentimes a suppressed one. Adjudicative law, furthermore, rests quite explicitly on narrative, and the knowledge gleaned from it, not only in the narratives embedded in 'statements of facts' but also, and more tellingly, in the narratives embedded in the unfolding of the common law itself: this case, involving these people, held thus and so, because the judge was struck by this fact, this later case then developed the rule in this way, because he was struck by a different unfolding. The common law itself, in other words, proceeds in a narrative voice. But second, and more in the spirit ofNussbaum's writing, the complaint against narrativity from the danger of either individual bias or cultural imperialism in legal reasoning particularly overshoots far beyond the mark, and in any event will backfire, or worse: to wilfully reject narrativity as a part of legal reasoning, and the knowledge it conveys, because of a fear of the bias to which it might lead is tantamount to rejecting the humanism it expresses. Narrative gives us a window, in other words, in a way that principle and measurement do not, to the humanity of others. The bias in the judgments which attentiveness to the narrative voice might generate is a central manifestation of and even an expression of the humanity of the speaker and listener both. It is because of our humanity that narrative creates a common bond between the subject of the narrative and the reader or listener. The danger, of course, is that the shared bond between them, created by the narrative word, can exclude as well as include. The solution to the unfairness to which our humanity inclines us -to my increased capacity, facilitated by my attention to your narrative, to see you, but not him, whom I can't or won't hear, to understand her, who speaks to me with clarity, but not they, whose voices are a muddle, to hear my children, or my folk, or my tribe, or my nation, because their stories resonate, but not your children, your folk, your tribe or your nation, because your stories sound so foreign or because you and they have been silenced - must be a broadened understanding, not a narrower one, if we are to retain that humanity. The moral judgment facilitated by narrative

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expands our sympathetic awareness of the subjectivity of the other. As it does so it renders all the more starkly our truncated and inadequate understanding of others who we have not heard. What is called for by that inadequacy, however, is a greater attentiveness, and openness, to the stories of others- which our humanity capacitates and requires- not a turning away from narrative itself. Emotions, Morality and the Rule ofLaw

Most of our conventional understandings of our emotions, and virtually all of our dominant jurisprudential ones, Nussbaum has argued over the course of her career, are profoundly misguided, and consequentially so. We can identify four such understandings that have come under the most sustained attack in her writing. First, both in our conventional understandings and in our jurisprudence, we elevate reason over emotion as conduits of knowledge. We know what we know, we generally believe, because of our capacity for reason; the role of our emotions in our understanding of the world and of ourselves is almost uniformly cast as profoundly negative. We acquire a moral sense, including a sense of justice, according to our conventional understandings, through reason: both our institutions of law and our aspiration of justice, then, must be built, laboriously, by reason, from our reasoned understanding of ourselves, our world and others; law, the Rule of Law and legalism are all products of reason and the justice which is its goal is a construct of reason. Again, emotions do nothing but retard or pervert this process; they lead us towards a partiality for our own or ourselves that is the antithesis of justice, they prompt us to self-serving acts of violence that are likewise the antithesis of the Rule of Law and legalism, they tend us towards a selfishness and a nasty and brute natural state from which law and only law as well as its products - the murder taboo, the enforcement of contracts, the protection of property and so on- can deliver us. Emotions, in essence, are the problem for which law, constructed through reason, and justice, knowable through reason, are the cure. Second, our emotions, like our physical body, are a part of our humanity that owe their origins to the natural world and, as such, they are that which at our best we transcend: through reason, through faith, through lasting intergenerational institutions that survive our limited life spans. Third, we are rational beings, by which is meant that we know ourselves quite thoroughly: we desire what is in our interest to desire, we prefer that which we desire and we choose that which we prefer. Our 'preference sets', furthermore, are rational: if we prefer a to b and b to c, we will prefer a to c, and so on. This rationality stands guard against the pernicious and infantile emotionalism that might lead us astray. Because we are rational creatures, we are not beset by masochism, an undue submissiveness, a fear of the father or an unwarranted love of the mother, or any other emotional impulse that might intervene in the unbreakable bond of self-interest, desire, preference and choice. The maximization of our well-being, then, is best achieved through the maximization of market opportunities for us to exercise our free choice; this is the path, because of our rationalism, towards well-being and autonomy both. Again, emotionalism simply stands as a threat to that bond, and hence a threat to well-being and autonomy likewise. And fourth, as we are near omniscient in our understanding of our own pleasures, pains, interests, desires and well-being, we are thoroughly incapacitated in our understanding of that of others: we cannot, as classical legal economists put the point, be capable of understanding, apprehending or comparing the 'interpersonal utilities' of others. We know our own preferences quite perfectly, or at least

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sufficiently perfectly to ward off even mild arguments for paternalism, but we cannot know whether a pinprick hurts someone else more than a blast to the kneecap with a hammer. These interpersonal comparisons of utility are beyond our rationality and reason. We must, then, rely on the revealed preferences of others, if we wish to increase their well-being, just as we can steadfastly rely on our own, to further our own self-interest. All of these interrelated claims, Nussbaum has argued, or tried to show, are false, and particularly for law and jurisprudence, and are quite consequentially so: they lead us to false accounts of the origins of law, of the possibilities for community, of the nature of our moral sense and of the nature of our own humanity. Take them in the order presented above. The first- the claim that our knowledge of the world, of ourselves and of moral truth is a product of reason, to which emotions are but a hostile and alien threat- has been, perhaps, her most consistent target throughout her career. Emotions, contrary to the conventional account, are built from our knowledge or purported knowledge of the world and convey knowledge to us as well (Nussbaum, 1990, 1994, 2004, 2010a, 2013a, 2014a). They do not wash over us from some alien source, polluting what we know and how we behave. They are as much of our own construction as are our world-views. Our states of anger, jealousy, rage, disgust, compassion, pity or mercy (to focus only on the emotions that have captured her attention) are constituted largely from factual claims we hold about various states of affairs - claims that may, of course, be false - and moral claims about their significance - claims which may or may not be justified. If we believe someone is suffering and that the suffering is undue, we will sympathize and feel compassion or pity; if we believe someone committed a wrongful act but that the prescribed punishment is overly harsh, we may feel merciful. If we believe someone has committed adultery and that the adultery warrants an act of vengeance we may feel jealousy and rage; if we believe someone has performed an act or is living a life unbefitting a human being, or an officer, or a civilized person, we may feel disgust. We form and hold emotions constituted by our beliefs and our commitments; they do not wash over us from some alien source. We cannot disentangle the substance of our emotions from the substance of our knowledge of the world, they are mutually constitutive. Likewise, law itself, our regard for the rule of law and our sense of justice are a product of emotion as well as reason: the impulse towards law is rooted in a fear of the violent potential of others and the disruption that violence will occasion in our own lives, projects and wellbeing, as well as a yearning for community and the recognition that law can strengthen it. The emotionalism that partly drives and determines law can have consequences for good or ill: law, and particular laws, and certainly our sense of justice, can be built on emotions that tend us towards a sympathetic engagement with the world's people or a recognition grounded in empathic regard of our common humanity or on a merciful understanding of the limits on action imposed by harsh circumstance - or on a sterile rationalism that recoils in disgust at our own biological limitations, a fascistic over-identification with people most like ourselves or a glorification of our impulses towards self-adulation, greed and self-aggrandizement. Emotions do not have a univocally positive impact on the content oflaw, nor have they played an unambiguously positive role in the development of our sense of justice. Denial of their centrality to legal projects, however, leads to our misapprehension of the nature oflaw. When that denial is, in turn, premised on the assumption that emotions have nothing but a pernicious effect on our know ledge of the world and of moral truth, it leads to a lack of appreciation of

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the role of moral emotions in the construction of the aspects of law and legalism which we should hold most dear, and of the goals we set for it to which we should aspire. Second, the identification of our emotional life with our natural, vulnerable, mortal and physical nature, and reason with our transcendent nature, rests on a demonstrably false polarization of emotion and reason, as any number of psychologists and philosophers have recently argued. It also, though, rests on a false and pernicious denigration of the physical, the mortal and the biological, aspects of our lives, no less than of the emotional. By virtue of that denigration, it leads to an impoverished jurisprudence. The institutions we build that survive our limited life spans should serve the entirety of the human experience, and that experience is an earthly and biological one as well as a spiritual one. Human beings, unlike angels, corporations and even other mammals, are born completely dependent on the care-giving of others, and remain as such for years. They require care, love and sustenance to thrive -their emotional needs are as pressing as their physical needs in formative years. They need, then, legal structures that respect and nurture and protect those familial environments. They, then, mature, age, become sickly and die - again unlike angels and corporations. Law and the jurisprudence that undergirds it must be for these sorts of creatures: creatures that require and value a healthy emotional life as well as a physical one, are drawn to emotional relationality and the ties that bind, along with its physical and sexual manifestations, and not just a world-leaping autonomous individualism. A jurisprudence that is built on a contemptuous denigration of not only our emotional life, needs and contributions, but also of our own natural and biological being, as well as that of our natural environment, will pervert our aspirations for law and encourage in its stead a chauvinistic stance ofhierarchy- of reason over emotion, male over female, human over animal. It will stunt the equalizing and anti-subordinationist potential of law, and blind us to our commonality with, and moral obligations towards, other sentient creatures. What of the twinned claims made on behalf of rationalism: first, because we are eminently rational creatures, we are the best, and indeed the only judges of our own self-interest, such that our self-regarding preferences should be viewed as unimpeachable. Second, because of limits on our rational understanding we cannot compare the interpersonal utilities felt by others. These two claims jointly undergird the modern case for unfettered markets: the former, because paternalistic actions by state officials are never necessary- each individual is the best judge of his or her own interest- and the latter, because paternalistic judgments are never plausible - none of us, in our state or private capacity, can know the other well enough to know, on behalf of his or her future flourishing, what sorts of interventions into private choice might be warranted. Both of these profoundly consequential claims, however, are belied by an understanding of the role of emotions in our understanding of the self and others. Both, in fact, can be understood as the residue that remains if emotions and the knowledge and false beliefs to which they give rise are consistently denied. On the first: as self-reflection should reveal, desires are only loosely and contingently tied to our objective interests, as even the slightest twinge of self-examination makes clear: we frequently desire that which we know will not serve us well in the long run. Our desires are even less directly determinative of our preferences: we often prefer that which someone else desires, rather than what we desire, because we are dependent on that person, or we love him, or we have come to view our fate as intertwined with his, or, more basely, we fear him. And our preferences, whether or not self-regarding, are not invariably reflected in our choices, whether on open markets for

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exchanges or private or intimate 'markets' where no 'swap' is intended. We may choose that which we don't prefer at all- our preferences may be perverse, but so might be our choices. We may choose to bind ourselves to a masthead- or just bind ourselves, period- so as not to give our preferences full sway, for noble reasons, ignoble, self-denigrating, masochistic or sexual. In each of these cases - desires that do not track interest, preferences that do not track desire and choices that do not track our preferences - emotions are playing a role. And in each case the emotions in question- self-sacrifice, self-denigration, love, submissiveness, fear, loyalty, compassion - are themselves not the products of irrationality, but the products of belief, moral knowledge and self-regard, or its lack. The denial ofthis simply leads to an understanding of people as something other than human- more like corporations, or angels, or automatons - or an understanding of humanity as rational, in a fully circular, tautological and utterly un-illuminating sense. Either way, it thwarts and stunts the potential for law's participation- again for good or ill- in the creation of a social state that contributes to human flourishing, rather than in the creation of barriers to the social interaction with markets that respect preference over all else, and denigrate humanity as they do so. Lastly, the claim that we cannot compare interpersonal utilities - thus undermining the positive role oflaw in the construction of social systems that might promote human flourishing -is based squarely on a denial of 'love's knowledge'- the knowledge generated by empathic regard for the suffering of others. In Moral Sentiments, Adam Smith ([1759] 1976) gives an account of the awakening of a moral regard for others that can be triggered by as simple an event as witnessing another person being kicked in the shins- we wince, because we partake a pale echo of the pain. As Nussbaum has observed, that simple passage by the man who coined the metaphor of the invisible hand singularly belies an understanding of the case for markets built upon such a thin reed as our inability to understand the hedonic state of others (1995, pp. 72-77). We do, in fact, have a window into the supposedly impenetrable and unknowable hedonic lives of our fellow creatures: we are not so different that our own responses are not an adequate guide much of the time. To the extent we aren't, however, we can turn to national and global culture as our guide. The teaching of literature alone -the realistic fiction lauded in Poetic Justice, from Dickens' Hard Times, to Native Son, to the novels of Jane Austen- can teach us something of the human condition and, hence, of the meaning of human flourishing. The limit of our knowledge of others presents us with a challenge, not an absolute barrier, to be overcome not by denying the content of that limited knowledge, but by expanding its scope and reach. The way to do so, again, is through the humanities, not social science alone, and through the knowledge gleaned by narrative, and not exclusively through measurement and principle.

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In Man for Himself, Erich Fromm ( 1947) argued that man should construct a morality as well as an understanding of his own psychology that serves humanity, rather than a constructed God. In a similar spirit, Nussbaum can be read as arguing the case for a Jurisprudence for Humanity, meaning that a law and its jurisprudential foundation should serve human beings and should protect, nurture and promote their flourishing. It might instrumentally, but should never absolutely, look to maximize profit, wealth, efficiency, principle or integrity. It should recognize our humanity and hence our mortality, vulnerability, need for care, susceptibility to disease, catastrophe and hurt, quest for honour and nobility, desires for dignity, propensity to self-aggrandizement and greed. It should recognize the dangers posed by the emotions

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we harbour that denigrate our humanity, such as disgust and hubris, and it should recognize and honour the emotions we harbour that push us towards ethical cosmopolitanism, a liberal regard for the different traditions, customs and tastes of others, an acknowledgement of the importance of individual autonomy and communal ties both. It should honour our nonlegalist traditions, including our religious faiths, while guarding against the assaults on our fundamental capabilities too often committed in their name, particularly against women, women's health and women's autonomy. It should recognize the nature of childhood and adulthood and respond accordingly, and it should impose upon us the duties incumbent on those who must tend the earth and respect the sentience of non-humans with whom we coinhabit it. This is the consistent strand through Nussbaum's voluminous writings, as they pertain to law. Nussbaum urges us, through our law and scholarship, to respect and regard the moral emotions as well as the immoral and amoral ones: emotions rest on and convey much of our moral knowledge about the world and each other, and from which we construct our sentiments of justice. We should, as liberal citizens of liberal states, through law and constitutionalism both, honour the differences between individuals without allowing awareness of those differences to swamp understanding and recognition of commonalities. As members of a polity, we should, and must, listen to the stories of those with whom we are not in community and remain open to changing our understanding of our shared nature in light of those stories. As participants in market economies as well as voters in democracies that can intervene in them, we should remain sceptical of the veracity of even our own self-knowledge, as we go about the business of imposing our will on the world, while we might consider suspending the scepticism we have been taught to hold with respect to our much denigrated abilities to understand others: with reflection and within a web of cultural achievements much can be known. We should, in essence, build a jurisprudence and a system of laws that promotes the emotional and physical health, the longevity, the autonomy, the relationality and the political ambitions- the desire to affect as well as control our material world- of others, and promotes them equally. We should inform that jurisprudence, in turn, with insights gleaned from the stories of others, portraits of life conveyed in the narratives that constitute our literatures, the teachings of the philosophical canon and the knowledge to be garnered from a due regard for our inner emotional lives. Nussbaum ian Jurisprudence and Legal Scholarship

The test of a jurisprudence is at least in part whether, how well and how deeply it can account for a substantial body or bodies of law, generate answers or clusters of answers to close legal questions and provide a normative account that can serve as a baseline of legal critique. Both the economic jurisprudence pioneered by Richard Posner and the principled jurisprudence of Ronald Dworkin, for example, do all three. Thus, the economic jurisprudence pioneered by Posner in the late 1970s and early 1980s was grounded on the remarkably simple claim that law should aim for efficiency; it quite famously accounted for large swaths of the common law, such as tort law's negligence, nuisance and strict liability doctrines, and it generated scores, and perhaps hundreds, of more particularized arguments about the resolution of close doctrinal questions, particularly in private law areas such as contract and contract-related fields, and provided a norm - efficiency - against which areas of law or more particular

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judicial opinions could be criticized. Similarly the secular natural law or morally principled approach of Dworkin and his followers was all built on the loosely liberal claim that law must treat each individual with equal dignity and respect; it likewise accounted for a great deal of constitutional law, particularly the law of civil rights, and it produced scores of arguments regarding the resolution of close doctrinal questions in public law areas, but particularly in constitutional law. It cleanly presented a baseline norm - equal respect and dignity - against which areas of law could be critiqued. The abstract theoretical plausibility, or implausibility, of either of these normative approaches to law - economic or principled - is clearly not the sole criterion against which they can or should be judged. Whether they can account for some sizeable area of law, provide a means by which to resolve close legal questions in controversial or unclear areas of law and constitute a measure of criticism for legal mistakes is at least one additional measure of their viability. The same should be true then of humanistic jurisprudence. For it to be a normative jurisprudence, and not simply a set of political or moral preferences for judge-made law, it must account for some body of law, suggest a means to resolve close legal questions and provide a morally appealing baseline of critique against which law can be judged. Each of the essays in this volume suggests that humanistic jurisprudence meets these three-part criteria. Each essay addresses an area oflaw and a doctrinal dispute within it; each shows the impact of either Nussbaum's own humanistic jurisprudential approach or some close alternative which is nevertheless informed by it, and each relies, although to varying degrees, on a humanistic jurisprudence for resolution of the legal question an unresolved area of law poses. The essays are arranged, roughly, in accordance with the outline given above of the content of Nussbaum's humanistic jurisprudence: the capabilities approach; the role of emotions in moral and legal life; the role of narrative in understanding and motivating law; and the importance of all three in promoting the flourishing of women, worldwide. Thus, the first set of essays in this volume reflects the impact of the capabilities approach on our understanding of the purposes of law in several discrete fields: disabilities law, animal rights and constitutional law, both domestically and internationally. The book opens with a trio of pieces on the capabilities approach and disability law, where the impact of Nussbaum's work on legal doctrine can be felt most concretely. Chapter 1, Michael Stein's 'Disability Human Rights', begins with a defence of a 'social constructivist' understanding of disabilities as derived from our social environment, as much or more than from natural limitations. He then argues that the content of disability 'rights', like human rights generally, should be understood by reference to capabilities, drawing heavily on Martha Nussbaum's account of capabilities as he does so. The point of the body of law should not be to elevate the disabled to some minimal functional baseline from within the confines of a non-discrimination norm, Stein argues, but rather to protect the capabilities of all of us. A capabilities approach, rather than a non-discrimination approach, clarifies the justification for the greater allocation of societal resources such an approach entails. Ravi Malhotra's 'Martha Nussbaum's Capabilities Approach and Equality Rights for People with Disabilities: Rethinking the Granovsky Decision' (Chapter 2) makes a similar argument, in the context of a critique of a decision by the Canadian Supreme Court. That decision, Malhotra argues, would be considerably buttressed by an explicit embrace of the capabilities approach to the distributional questions raised by the aspiration to protect the flourishing of disabled persons. The third of this trilogy on disabilities, Alexander BoniSaenz's 'Personal Delegations' (Chapter 3), uses the capabilities approach, as developed by

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Nussbaum, to address a difficult question of estate law: the extent to which mentally disabled persons can or should be understood as having delegated decisional authority over personal and intimate matters, such as marriage and divorce. Saenz argues that the capabilities approach can alert us to the cost, in terms of individual flourishing, of denying such constructively delegated decisional authority, as contemporary approaches that tend to focus on personal autonomy, rather than personal capabilities, tend to do. The book then turns to fields where the capabilities approach can provide not so much an account of an area of law as a baseline for its critique. In Chapter 4, 'Animals as Vulnerable Subjects', Ani Satz examines US law relating to animal research by employing a variant on a capabilities approach, arguing that non-humans can flourish or fail to flourish, and that our obligations to promote flourishing therefore ought to extend beyond our own species. She then explores how such an approach could ground an approach to animal rights that goes beyond the utilitarian and deontological approaches that have thus far dictated the boundaries of the field and of arguments within it. In 'Constitutions and Capabilities' (Chapter 5), I explore the relation between the capabilities approach, understood politically as a call to liberal states to promote the capabilities of their citizens, and the dictates of the US Constitution, as interpreted by the Supreme Court of the last century. The Constitution, as understood and enforced by the Court, has been peculiarly but consistently resistant to the enforcement of so-called 'positive rights', or welfare rights, which would seemingly count heavily against a capabilities approach to constitutionalism, either in the US or elsewhere, where the US Constitution is regarded as exemplary of constitutionalism generally. The essay argues against this seeming incompatibility. The US Constitution's apparent hostility to positive welfare rights can be more readily attributed to the tradition of adjudicative authority than to any of its substantive provisions. If interpreted by other political bodies, such as legislative assemblies or simply the public, in political debate, even the US Constitution, notoriously one of 'negative rights only', seems to carry within it the seeds of an approach to rights that closely resembles Nussbaum's capabilities approach. If so, the distance between the United States' constitutionalism and either the capabilities or human rights discourse internationally might not be as great as it initially appears. Part II of the book presents three essays, each of which looks at the impact of a humanistic or N ussbaumian account of emotions on recurrent issues in criminal law and procedure. Chapter 6, by Katharine Baker, examines the role of emotions in criminal law cases involving female defendants or victims. In making her argument that the law's treatment of our emotional life often works to the detriment of women, Baker employs the Nussbaumian distinction between a non-cognitivist approach, which posits emotions as forces that overcome us with virtually no cognitive content, and over which we have little or no control, with an alternative cognitive approach, in keeping with Nussbaum's general understanding of emotions as comprising, largely if not entirely, factual and moral knowledge, and which in turn implies greater individual responsibility for their content and for the acts taken under their influence. Susan Bandes' 'Empathy, Narrative, and Victim Impact Statements' (Chapter 7) looks at a wider swath of scholarship on empathy and narrative, attributing the growth of both to Nussbaum's contributions in both fields, and then argues for a greater recognition of both narrative and empathy in law, but nevertheless against the admissibility of victim impact statements. In Chapter 8, David Gray examines the role of mercy, and compassion, in sentencing, arguing on Nussbaumian grounds that mercy is a moral emotion that can and should steer our punitive

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practices, particularly where the moral role of the state as punishing agent is compromised by breach of various duties of protection towards prisoners. The essays in Part III briefly take up Nussbaum's influence on our understanding of sexuality and our commitment to feminism in developing countries. Noa Ben-Asher's 'Conferring Dignity: The Metamorphosis of the Legal Homosexual' (Chapter 9) examines the ways in which the law has constructed homosexuality, ultimately concluding that a Nussbaumian emphasis on human dignity and flourishing would be more generous than the assimilationist inclinations of liberal legalism. In Chapter 10, 'Feminism as Liberalism', Tracey Higgins takes the measure ofNussbaum's contribution to modern international feminism. Nussbaum's capabilities approach was specifically designed to retool modern liberal feminism, along with its universalist and liberal aspirations, so as to better address the situation and challenges of women in the developing world. Higgins applauds the effort with some reservations, drawing on both Nussbaum's accounts of her work in India and Higgins' own work with women in African countries. In Chapter 11, 'Human Capabilities and Human Authorities', I likewise examine and loosely endorse Nussbaumian liberal feminism, but argue that it does not adequately account for, or offer ways to rebut, the role that institutional authorities, including state, church and family, can play in stifling the capabilities of women in developed and developing countries both. Part IV, on Law and Literature, begins with an essay by Elizabeth Emens (Chapter 12), exploring alternative conceptions of marriage in science fiction. The essay nicely exemplifies the use ofliterature to spark the moral imagination, triggering understandings of the point and potential of marriage that go beyond the assimilationist claims put forward by human rights campaigns on behalf of gay marriage. Chapter 13, 'The Poet and the City', by Kenji Yoshino, re-examines the old claim, put forward by Plato, that the poet, and by extension, today's writer of realist fiction, has no place in the realm of politics. Drawing on Nussbaum's various writings, Yoshino defends the role of the literary in politics and scholarship, but argues against its use in judicial proceedings themselves.

***

Individually, the essays show the generativity and fecundity of Nussbaum's philosophical and literary writing for contemporary doctrinal arguments surrounding discrete areas of law. Collectively, I hope they evidence two deeper possibilities: first, the possibility of a paradigm shift in interdisciplinary legal studies away from formalism and empirical legal studies and towards a study of law and humanities; and second, the possible emergence of a humanistic jurisprudence that can guide the effort and that understands human flourishing, rather than either wealth or principle, as the normative point of law and legal reform. All the essays, at various points, follow Nussbaum's lead in turning to the humanities for a deeper understanding of legal doctrine and all rest on some understanding of flourishing human lives as the goal towards which various areas of law ought to strive. Spanning almost two decades, and covering a range of issues, they suggest that this methodological turn to the humanities and the theoretical turn to humanistic jurisprudence, both of which have been in some fashion central to Nussbaum's life work, might just well stick. What I hope they evidence, in short, is that Nussbaum has carved a new path of the law, one not anticipated in Holmes's essay of that name but, nevertheless, one that is likely within the spirit of his generous and ecumenical understanding of the study of law's reach.

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References Adler, Matthew D. (2012), Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis, Oxford: Oxford University Press. Bolt, Robert (1960), A Man for all Seasons, London: Heinemann. Brooks, Peter (1996), Law's Stories: Narrative and Rhetoric in the Law, New Haven: Yale University Press. Brooks, Peter (2000), Troubling Confessions: Speaking Guilt in Law and Literature, Chicago: University of Chicago Press. Cohen, Felix (1935), 'Transcendental Nonsense and the Functional Approach', Columbia Law Review, 35, pp. 809-49. Cohen, Morris Raphael and Cohen, Felix S. ( 1979), Cohen and Cohen's Readings in Jurisprudence and Legal Philosophy, Boston: Little, Brown. Cormack, Bradin, Nussbaum, Martha C. and Strier, Richard (eds) (2013), Shakespeare and the Law: A Conversation among Disciplines and Professions, Chicago: University of Chicago Press. Delgado, Richard (1995), The Rodrigo Chronicles: Conversations about America and Race, New York: New York University Press. Delgado, Richard ( 1998), The Latino Condition: A Critical Reader, New York: New York University Press. Delgado, Richard and Stefancic, Jean (2001), Critical Race Theory: An Introduction, New York: New York University Press. Dworkin, Ronald (1967), 'The Model of Rules', University of Chicago Law Review, 35, pp. 14-46. Dworkin, Ronald (1977), Taking Rights Seriously, Cambridge, MA: Harvard University Press. Dworkin, Ronald ( 1986), Law's Empire, Cambridge, MA: Belknap Press. Elster, Jon (1983), Sour Grapes: Studies in the Subversion of Rationality, Cambridge: Cambridge University Press. Eskridge, William N. Jr and Frickey, PhilipP. (1994), 'The Making of the Legal Process', Harvard Law Review, 107, pp. 2031-55. Ferguson, Robert A. ( 1984), Law and Letters in American Culture, Cambridge, MA: Harvard University Press. Fish, Stanley E. ( 1989), Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies, Durham, NC: Duke University Press. Fish, Stanley E. ( 1995), Professional Correctness: Literary Studies and Political Change, Oxford: Clarendon Press. Fish, Stanley E. ( 1999), The Trouble with Principle, Cambridge, MA: Harvard University Press. Fuller, Lon L. ( 1966), The Law in Quest of Itself, Boston: Beacon Press. Frank, Jerome and Gray, Roland (1930), Law and the Modern Mind, New York: Brentano's. Fromm, Erich (194 7), Man for Himself: An Inquiry into the Psychology of Ethics, New York: Rinehart. Grey, Thomas C. (1983), 'Langdell's Orthodoxy', University of Pittsburgh Law Review, 45, pp. 1-53. Hart, H.L.A. (1958) 'Positivism and the Separation of Law and Morals', Harvard Law Review, 71, pp. 593-629. Hart, Henry M. and Sacks, Albert M. (1994), The Legal Process: Basic Problems in the Making and Application ofLaw, Westbury, NY: Foundation Press. Hayek, Friedrich (1944), The Road to Serfdom, Chicago: University of Chicago Press. Holmes, Oliver Wendell Jr (1997), Address at the Dedication of New Hall of Boston University School ofLaw (Jan. 8, 1897), in 'The Path ofthe Law', Harvard Law Review, 110, pp. 991-1009. lshiguro, Kazuo (1989), The Remains of the Day, New York: AlfredA. Knopf. Kahan, Dan and Nussbaum, Martha ( 1996), 'Two Conceptions of Emotions in Criminal Law', Columbia Law Review, 96, pp. 269-374.

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Kelman, Mark (1979), 'Choice and Utility', Wisconsin Law Review, pp. 769-97. Kelman, Mark ( 1987), A Guide to Critical Legal Studies, Cambridge, MA: Harvard University Press. Kronman, Anthony T. (1993), The Lost Lawyer: Failing Ideals of the Legal Profession, Cambridge, MA: Belknap Press. Lee, Harper (1960), To Kill a Mockingbird, Philadelphia: Lippincott. Levinson, Sanford ( 1988), Interpreting Law and Literature: A Hermeneutic Reader, Evanston, IL: Northwestern University Press. Levinson, Sanford (2006), Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), Oxford: Oxford University Press. Levinson, Sanford (20 12), Framed: America's 51 Constitutions and the Crisis of Governance, Oxford: Oxford University Press. Levmore, Saul and Nussbaum, Martha C. (eds) (2014), American Guy: Masculinity in American Law and Literature, Oxford: Oxford University Press. Llewellyn, Karl N. (1930), The Bramble Bush: On Our Law and Its Study, New York: Oceana. Michaels, Walter B. ( 1982), 'Against Theory', Critical Inquiry, 8, pp. 723-42. Michaels, Walter B. ( 1987), The Gold Standard and the Logic ofNaturalism: American Literature at the Turn of the Century, Berkeley: University of California Press. Nozick, Robert (1974), Anarchy, State, and Utopia, New York: Basic Books. Nussbaum, Martha (1988), 'Nature, Function, and Capability: Aristotle on Political Distribution', in Oxford Studies in Ancient Philosophy: Supplementary Volume, Oxford: Oxford University Press, pp. 145-84. Nussbaum, Martha C. (1990), Love's Knowledge: Essays on Philosophy and Literature, Oxford: Oxford University Press. Nussbaum, Martha C. (1994), The Therapy of Desire: Theory and Practice in Hellenistic Ethics, Princeton: Princeton University Press. Nussbaum, Martha C. ( 1995), Poetic Justice: The Literary Imagination and Public Life, Boston: Beacon Press. Nussbaum, Martha C. (1999), Sex and Social Justice, Oxford: Oxford University Press. Nussbaum, Martha C. (2000), Women and Human Development: The Capabilities Approach, Cambridge: Cambridge University Press. Nussbaum, Martha C. (2004), Hiding From Humanity: Disgust, Shame, and the Law, Princeton: Princeton University Press. Nussbaum, Martha C. (2006), Frontiers of Justice: Disability, Nationality, Species Membership, Cambridge, MA: Belknap Press. Nussbaum, Martha C. (2007), 'Supreme Court 2006 Term Foreword. Constitutions and Capabilities: "Perception" Against Lofty Formalism', Harvard Law Review, 121, pp. 4--97. Nussbaum, Martha C. (2008), Liberty of Conscience: In Defense of America's Tradition of Religious Equality, New York: Basic Books. Nussbaum, Martha C. (201 Oa), From Disgust to Humanity: Sexual Orientation and Constitutional Law, Oxford: Oxford University Press. Nussbaum, Martha C. (2010b), Not for Profit: Why Democracy Needs the Humanities, Princeton: Princeton University Press. Nussbaum, Martha C. (2011), Creating Capabilities: The Human Development Approach, Cambridge, MA: Belknap Press. Nussbaum, Martha C. (2013a), Political Emotions: Why Love Matters for Justice, Cambridge, MA: Belknap Press. Nussbaum, Martha C. (2013b), 'Romans, Countrymen, and Lovers: Political Love and the Rule of Law in Julius Caesar', in Bradin Cormack, Martha C. Nussbaum and Richard Strier (eds ), Shakespeare

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and the Law: A Conversation among Disciplines and Professions, Chicago: University of Chicago Press, pp. 256-81. Nussbaum, Martha C. (2014a), The John Locke Lectures 2014: 'Anger and Forgiveness', 7 May4 June. Nussbaum, Martha C. (2014b), 'Jewish Men, Jewish Lawyers: Roth's "Eli, the Fanatic" and the Question of.Tewish Masculinity in American Law', in Saul Levmore and Martha C. Nussbaum (eds), American Guy: Masculinity in American Law and Literature, Oxford: Oxford University Press, pp. 165-201. Nussbaum, Martha C. and Sen, Amartya K. ( 1988), 'Internal Criticism and Indian Rationalist Traditions', in M. Krausz (ed.), Relativism: Interpretation and Confrontation, Notre Dame, IN: University of Notre Dame Press, pp. 299-325. Nussbaum, Martha C. and Sen, Amartya K. ( 1993), The Quality of Life, Oxford: Clarendon Press. Posner, Richard A. (1973), Economic Analysis ofLaw, New York: Little, Brown. Posner, Richard A. ( 1981 ), The Economics ofJustice, Cambridge, MA: Harvard University Press. Rubin, Edward (2007), 'What's Wrong with Langdell's Method, and What to Do About It', Vandervilt Law Review, 60, pp. 609-65. Sen, Amartya ( 1985), Commodities and Capabilities, Amsterdam: North-Holland. Sen, Amartya (1999), Development as Freedom, New York: Knopf Sen, Amartya (2004), 'Capabilities, Lists, and Public Reason: Continuing the Conversation', Feminist Economics, 10, pp. 77-80. Shaffer, Thomas L. (1981), 'The Moral Theology of Atticus Finch', University of Pittsburgh Law Review, 42, pp. 181-224. Smith, Adam ([1759] 1976), The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, Oxford: Oxford University Press. Solove, Daniel (20 14), 'Resources', Law & Humanities, George Washington University Law School, 28 August, available at: http://docs.law.gwu.edu/facweb/dsolove/Law-Humanities/resources.htm. Weisberg, Richard H. (1984), The Failure of the Word: The Protagonist as Lawyer in Modern Fiction, New Haven: Yale University Press. Weisberg, Richard H. (1987), When Lawyers Write, Boston: Little, Brown. Weisberg, Richard H. ( 1992), Poethics and Other Strategies ofLaw and Literature, New York: Columbia University Press. Wendel, W. Bradley ( 1995), 'Lawyers and Butlers: The Remains of Amoral Ethics', Georgetown Journal of Legal Ethics, 9, pp. 161-90. West, Robin L. (1985), 'Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner', Harvard Law Review, 99, pp. 384-428. West, Robin L. ( 1996), 'The Literary Lawyer', Pacific Law Journal, 27, pp. 1187-210. West, Robin L. (2013), 'The Unbearable Lightness of Justice', in Teaching Law: Justice, Politics, and the Demands ofProfessionalism, Cambridge: Cambridge University Press. White, James B. ( 1973), The Legal Imagination: Studies in the Nature ofLegal Thought and Expression, Boston: Little, Brown. White, James B. (1984), When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community, Chicago: University of Chicago Press. White, James B. ( 1985), Heracles 'Bow, Madison: University of Wisconsin Press. White, James B. ( 1990), Justice as Translation: An Essay in Cultural and Legal Criticism, Chicago: University of Chicago Press. White, James B. (1994), Acts of Hope: Creating Authority in Literature, Law, and Politics, Chicago: University of Chicago Press. White, James B. ( 1999), From Expectation to Experience: Essays on Law and Legal Education, Ann Arbor: University of Michigan Press. White, James B. (2001), The Edge of Meaning, Chicago: University of Chicago Press.

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White, James B. (2006), Living Speech: Resisting the Empire ofForce, Princeton: Princeton University Press. Williams, Patricia J. (1991 ), The Alchemy of Race and Rights, Cambridge, MA: Harvard University Press. Williams, Patricia J. ( 1995), The Roosters Egg, Cambridge, MA: Harvard University Press. Williams, Patricia J. (1998), Seeing a Color-Blind Future: The Paradox of Race, New York: Noonday Press.

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[1] Disability Human Rights Michael Ashley Steint Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations General Assembly will soon adopt a disability-based human rights convention. This Article examines the theoretical implications of adding disability to the existing canon of human rights, both for individuals with disabilities and for other under-protected people. It develops a "disability human rights paradigm" by combining components of the social model of disability, the human right to development, and Martha Nussbaum's version of the capabilities approach, but filters them through a disability rights perspective to preserve that which provides for individual flourishing and modifYing that which does not. This Article maintains that Nussbaum's capabilities approach provides an especially fertile space within which to understand the content of human rights. However, because her scheme excludes some intellectually disabled individuals and conditions the inclusion of others, it falls short of a comprehensive framework. Amending Nussbaum's capabilities approach to develop the talents of all individuals results in a disability human rights paradigm that recognizes the dignity and worth of every person. This Article also argues that a disability rights paradigm is capable of fortifYing human rights in two ways:.first, it can reinforce protections afforded to groups already protected, such as women; and second, it can extend protections to people currently not protected, such as sexual minorities and the poor. Ultimately, the disability rights paradigm ·;· Cabell Research Professor, William & Mary School of Law. I wrote this Article while a Visiting Professor at Harvard Law School (2005-06). I thank Michael Abramowicz, Matthew Adler, William Alford, Carlos Ball, .James Cavallaro, Ryan Goodman, Angela Harris. Brian Havel, Ann Hubbard, Sonia Katyal, Andrew Koppelman, Hope Lewis, .John Manning, Frank Michelman, Martha Minow, Martha Nusshaum, .Jamie O'Connell, Amanda Perreau-Saussine, Ani Satz, Anita Silvers, and David Wilkins for their thoughtful retlections; Monique Cioffalo and Anne-Marie Zell for their adroit research assistance; the editors of the California J.mv Review for their efforts; and Penelope Stein for enabling my capabilities. I benetited from comments received at Berkeley, Chicago, Connecticut, CornelL DePaul, George Washington. Harvard, Northeastern, and Valparaiso workshops, as well as those following addresses to the British Council, the .Iapan Diet. and an American Society for International Law/Library of Congress forum. My research was made possible by an American Council ofLeamed Societies Andrew W. Mellon Fellowship, and by a grant from the Harvard Law School East Asian Legal Studies Program.

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indicates that human rights protection can progress from a group to an individual basis. Repositioning disability as an inclusive concept embraces disability as a universal human variation rather than an aberration. INTRODUCTION

More than six hundred million people, or about I 0% of the world's population, have some type of disability. 1 Around 80% of disabled persons live in developing countries, where they experience material deprivation and social exclusion. 2 For example, only 2% of disabled children in such countries receive any schooling. 3 Nevertheless, no existing United Nations human rights treaty expressly protects people with disabilities. To claim protection under a United Nations convention, disabled individuals must either invoke a universal provision or embody a separately protected characteristic. For instance, a woman with a disability may not claim protection based on her disability status alone, but may claim protection from torture or from sex discrimination. As a result of these limitations, only a handful of disability-based human rights claims have been asserted under these "hard laws." By contrast, a series of General Assembly resolutions, declarations, and protocols explicitly reference disability. Yet these "soft laws" are not legally enforceable. Consequently, no existing international human rights instrument is both applicable to and enforceable by individuals on the basis of disability. In response to this void, the United Nations commissioned an Ad Hoc Committee to consider an international convention specifically protecting the human rights of disabled persons. As of this writing, that committee has drafted articles for consideration by the General Assembly. This Article examines the theoretical implications of adding disability protections to the existing canon of human rights, both for individuals with disabilities and for other under-protected people. 4 To do so, it develops a "disability human rights paradigm" that combines components of the social model of disability, the human right to development, and philosopher

1. GERARD QUINN ET AL., HUMAN RIGHTS AND DISABILITY 1 (2002), available at http://www.nhri.net/pdf/disability.pdf. 2. See THE SECOND ANNUAL REPORT ON THE IMPLEMENTATION OF USAID DISABILITY PoLICY 1-2 (2000), http://pdf.dec.org/pdf_docs/PDABT61 O.pdf. For a sense of how the varying levels of disability are reported from country to country, see Statistics Div., U.N. Dep't of Econs. & Soc. Affairs, Human Functioning and Disability, available at http://unstats.un.org/unsd/ demographic/sconcerns/disability/default.htrn (last visited Aug. 13, 2006). 3. See QuiNN ET AL., supra note 1, at I. 4. Although the proposed convention is an expedient framework for discussing the repercussions of incorporating disability-based rights into the extant body of human rights treaties, my arguments do not depend on its passage. At the same time, I treely admit that I favor enactment ofthe proposed convention, and, moreover, that I am privileged to have been involved in its development.

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Martha Nussbaum's version of the "capabilities approach," 5 but filters these frameworks through a disability rights perspective to preserve that which provides for individual flourishing and modifY that which does not. Nussbaum's capabilities approach generally values the dignity, autonomy, and potential of all individuals, and views each as his or her own end. In doing so, her framework provides an elegant nonnative theory of human rights as a means of ensuring human flourishing. However, Nussbaum's scheme does not sufficiently account for the development of individual talent. This is because it requires that individuals be capable of attaining each of ten functional abilities as a prerequisite to being "truly human" and thus wholly entitled to resource distribution. Consequently, her framework excludes some individuals with intellectual disabilities, and only indirectly assists others. 6 A more inclusive approach is the disability human rights paradigm, which maintains as a moral imperative that every person is entitled to the means necessary to develop and express his or her own individual talent. This paradigm compels societies to acknowledge the value of all persons based on inherent human worth, rather than basing value on an individual's measured functional ability to contribute to society. Accordingly the framework assesses ability from the bottom up, embracing all individuals-including those excluded by Nussbaum's capabilities approach-and accounting for their functional variations. By putting potential talent above function, the paradigm I offer embraces disability as a universal variation rather than as an aberration. This approach is necessary if human rights are to apply to all humans. This Article also argues that disability-based human rights necessarily invoke both civil and political ("first-generation") rights, as well as economic, social, and cultural ("second-generation") rights to a greater degree than previous human rights paradigms. Broadly stated, firstgeneration rights largely occupy the focus of human rights practitioners and advocates. These rights are understood as promoting equal treatment among individuals, and include prohibitions against State interference. 5. Strictly speaking, the capabilities approach originates with Amartya Sen's development economics theories. See, e.g., AMARTYA K. SEN, DEVELOPMENT AS CAPABILITY EXPANSION, IN HUMAN DEVELOPMENT AND THE INTERNATIONAL DEVELOPMENT STRATEGY FOR THE I990S [ (Keith Griffin & John Knight eds., 1990) [hereinafter SEN, DEVELOPMENT AS CAPABILITY EXPANSION]. The premises proffered, by Nussbaum and Sen, respectively, provide essential support for arguments made in this Article. In Parts III.B-C., I build on-and strongly critique-Nussbaum's version to help model a framework for human rights because I find her feminist perspective conducive to disability rights discourse. I utilize Sen's economic methodology primarily in Part IV.B. to argue in favor of extending human rights protection to the poor because of its deeper link to development economics. 6. By logical extension Nussbaum's capabilities approach also excludes some individuals with non-intellectual disabilities as well as certain lower functioning individuals without disabilities. A full discussion exceeds the boundaries ofthis Article.

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Sometimes these rights are thought of as "negative rights." 7 Examples of first-generation rights are the rights to life, movement, thought, expression, association, religion, and political participation. 8 Second-generation rights are traditionally the province of development agencies. These rights are understood as providing equal opportunity, and are often thought of as "positive rights." 9 Second-generation rights generally focus on standards of living, including issues such as the availability of housing and education. 10 Tying first- and second-generation rights together illustrates how the disability human rights paradigm can be applied to other people. The social attitudes underlying disability-related exclusion manifest more overtly than those causing isolation of other groups. Applying a disability paradigm highlights the effect of social exclusion, and points out the need of ensuring that the human rights of all socially marginalized groups are protected. As a result, the disability human rights paradigm reaffirms that established human rights protections, like those extending to women, require indivisible application of first- and second-generation rights as envisioned by the third-generation human right to development. The disability framework also maintains that human rights protections should be applied to other marginalized people, such as sexual minorities and the poor. Ultimately, the disability rights paradigm indicates that human rights protection can progress from a group to an individual basis. Thus, in addition to advocating for disability-specific protection paralleling that of established human rights instruments-itself a rare exercise in legal literature"-! proffer an argument for extending disability-based human 7. Isaiah Berlin, Two Concepts of Liberty, in FouR EssAYS ON LIBERTY 118, 122 (1958) (declaiming that authentic liberty is simply the absence of "the deliberate interference of other human beings within the area in which I could otherwise act"). 8. See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI). art. 6, para. 1, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) ("Every human being has the inherent right to life.") [hereinafter 1CCPR]; 1CCPR, supra, art. 9, para. 1 ("Everyone has the right to liberty and security of person."); ICCPR, supra, art. 12, para. I (''Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."); TCCPR, supra, art. 18, para. I ("Everyone shall have the right to freedom of thought, conscience and religion."). 9. See, e.g.. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), art. 11, para. 1, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, 993 U.N.T.S. 3 (Dec. 16, 1966) ("States parties ... recognize the right of everyone to an adequate standard of living") [hereinafter TCESCR]; Berlin, supra note 7, at 123 (detining positive liberty as the result of selt:reliance and the ability to direct one's own agency). I 0. It is significant that development agencies have only more recently embraced first-generation rights. Human rights scholars have long criticized these entities for neglecting human rights to focus exclusively on subsistence issues, meaning food and clean water. See, e.g., Philip Alston, The Fortieth Anniversary of the Universal Declaration of Human Rights, in HuMAN RIGHTS IN A PLURALIST WORLD I, 11-12 (J. Berling et al. eds., 1990). II. A notable exception is THE HL:MAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES: DIFFERENT BUT EQUAL (Stanley S. Herr et al. eds., 2003) (publishing the proceedings of a 1995 conference convened at Yale Law School) [hereinafter DIFFERENT BUT EQUAL].

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rights concepts to other socially excluded individuals. 12 The paradigm therefore stakes out a distinct perspective on human rights law, one I hope will encourage further discussion. Patis I and II set forth the existing canon of disability-based human rights protections. Part I considers current United Nations instruments pertaining to disability, and briefly recounts the efforts underway to pass a convention on behalf of disabled persons. Part II describes the social model of disability in contrast to the medical model, and discusses its growing influence on the formation of international instruments as well as its limitations in overall human rights discourse. Parts III and IV consider the implications of applying a disability human rights paradigm both to persons with disabilities and other groups. Part III develops the paradigm by integrating Martha Nussbaum's version of the capabilities approach with the social model of disability and the human right to development. Part IV argues that the clearly indivisible nature of disability-based rights presents a strong exemplar, indicating the ability to understand established human rights as similarly undividable, and creates the possibility for extending human rights protection to other vulnerable populations. This Article concludes with a few thoughts on the potential consequences of viewing disability as universal to rather than abnormal from the human condition. I THE SCOPE OF DISABILITY HUMAN RIGHTS

Each of the seven core United Nations treaties theoretically applies to disabled persons in varying degrees, but are rarely applied in practice. Compounding this problem, General Assembly soft laws explicitly referencing disability are legally unenforceable. An international convention specifically protecting the human rights of disabled persons will soon be considered by the General Assembly.

A.

Hard Laws: United Nations Core Treaties

Since its formation after the Second World War, the United Nations has promulgated seven core legally enforceable human rights treaties. 13 12. The only comparable analysis I am aware of is Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination. and Reasonable Accommodation, 46 DuKE L.J. I (1996), which sought to extend Americans with Disabilities Act reasonable workplace accommodations to members of constitutionally protected classes. 13. Whether treaties arc actually enforced, as well as the broader question of whether international law is "law," has long been the subject of academic debate, the resolution of which goes far beyond this Article. For now it bears noting that perhaps the most signitlcant objection to the notion of enforceability is the observation that under international law States parties retain the ability to opt out of treaties, in whole or in part, as well as to reserve independent understandings of their application.

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Each of these hard laws implicitly protects persons with disabilities, but to varying degrees. To invoke these protections, disabled persons must either fall under a universal provision or possess a separately protected characteristic in addition to his or her disability. To date, no United Nations human rights treaty expressly applies to individuals on the basis of a disability-related characteristic. 14 Two components of the International Bill of Human Rights, 15 the International Covenant on Civil and Political Rights (ICCPR) 16 and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), 17 are universal in scope. 18 The same is true for the Convention against Tm1ure and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). 19 Although disability is not specifically mentioned in

For two very different perspectives on the implications of this State prerogative, compare Oona A. Hathaway, The Cost of Commitment, 55 STAN. L. REV. 1821 (2003) (maintaining that traditional understandings of treaty ratification do not adequately account for the likelihood of national compliance) and Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L..l. 1935 (2002) (asserting that some number of States ratify human rights treaties as a means of avoiding observance), with Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DuKE L.J. 621 (2004) (arguing that international human rights treaties encourage domestic legal norm changes) [hereinafter Goodman & Jinks, How to Influence States]. and Ryan Goodman & Derek Jinks. i'vfeasuring the Effects of Human Rights Treaties, 13 EuRO. J. INT'L. L.l71 (2003) (same, while also critiquing the empirical evidence upon which Hathaway based her conclusions). For a harmonizing approach, see Alex Geisinger & Michael Ashley Stein, A Theory of Expressive International Lmv, 60 YANU. L. REv. (forthcoming 2007). 14. Similarly, disabled persons are not explicitly included in non-treaty United Nations instruments. For example, both the Charter of the United Nations and the Universal Declaration of Human Rights promote human rights, but neither expressly references disability. See, e.g., U.N. CHARTER art. 55, para C. (expressing an aspiration to promote "universal respect for, and observance ot: human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"): Universal Declaration of Human Rights, G.A. Res. 217A (Ill), arts. 1-2, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) (proclaiming that "all human beings are born free and equal in dignity and rights" and are "entitled to all the rights and freedoms set forth in tl1is Declaration, without distinction of any kind, such as race, colour. sex, language, religion. political or other opinion, national or social origin, property, birth or other status.") [hereinafter Universal Declaration]. 15. See Otfice of the High Comm'r for Human Rights, Fact Sheet No. 2 (Rev. !): International Bill of Human Rights, http://www.unhchr.ch/html/menu6/2/fs2.htm (the International Bill of Human Rights is a collection of international instruments, including the Universal Declaration, ICCPR, ICESR, and two Optional Protocols). 16. ICCPR,supranote8. 17. ICESCR, supra note 9. 18. See, e.g., ICCPR, supra note 8, at pmbl. (averring that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world"); ICESCR supra note 9, at art. 2, para. 2 (the rights enumerated in the ICESCR "will be exercised without discrimination of any kind as to race, colour ... or other status"). 19. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, at 197, U.N. GAOR, 39th Sess., Annex, Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984) [hereinafter CAT].

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any of these treaties, they technically include all human beings within their respective provinces. 20 In addition to these three universal treaties, the General Assembly has enacted four hard law treaties protecting people based on specific identity characteristics unrelated to disability. 21 In chronological order, these are: the Intemational Convention on the Elimination of All Forms of Racial Discrimination (ICERD); 22 the Convention on the Elimination of All Forms of Discrimination against Women (CEDA W); 23 the Convention on the Rights of the Child (CRC); 24 and the Intemational Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICPMW). 25 The CRC alone among these treaties contains a specific disability-related article; it requires that States parties recognize the rights of children with disabilities to enjoy "full and decent" lives and participate in their communities. 26 However, the relative financial constraints of States parties tempers the obligation. Moreover, the CRC 20. See generally Gerard Quinn, The International Covenant on Civil and Political Rights and Disability: A Conceptual Framework, in HUMAN RIGHTS AND DISABLED PERSONS 69 (Theresia Degener & Yolan Koster-Dreese eds., 1995) [hereinafter HUMAN RIGHTS AND DISABLED PERSONS]; Philip Alston, Disability and the International Covenant on Economic, Social, and Cultural Rights, in HUMAN RIGHTS AND DISABLED PERSONS, supra, at 94; Manfred Nowak & Walter Suntinger, The Right of Disabled People Not to be Subjected to Torture, Inhuman and Degrading Treatment or Punishment, in HUMAN RIGHTS AND DISABLED PERSONS, supra, at 117. 21. These provisions are a mixed blessing. On the positive side, they provide an additional avenue of protection for disabled persons experiencing "double discrimination" based on more than one identity characteristic. For example, a person may sutler prejudice as a result of being disabled and of Inuit heritage. On the negative side, they only protect individuals who encounter discrimination serially. Because disability is almost uniformly relegated to ''other" status, disabled people's rights are trequently overlooked. One example of such disregard is the Declaration that proceeded from the 200 I World Conterence Against Racism, Racial Discrimination, Xenophobia and Related Intolerance that was convened in Durban, South Africa. See World Conterence Against Racism. Racial Discrimination, Xenophobia & Related Intolerance, Aug. 31-Sept. 8, 2001, Durban Declaration and Programme of Action, U.N. Doc. No. A/CONF.l89/12, available at http://www.unhchr.ch/pdf!Durban.pdf. Although the Declaration encourages the General Assembly to enact disability specific human rights protection, it does not include disability among the otherwise inclusive catalog of identity statuses it deemed to suffer discrimination. See id. at para. 180. More trenchantly, individuals whose rights are violated "solely" due to their disability identity receive no added protection. 22. International Convention on the Elimination of All Forms of Racial Discrimination, G.A Res. 2106 (XX), at 47. U.N. GAOR, Supp. No. 14, U.N. Doc. A/6014 (Dec. 12, 1965) [hereinafter lCERD]; see generally Theodor Meron, The .Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, 79 AM. J. INT'L L. 283 (1985). 23. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, at 193, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (Dec. 17, 1979) rhereinafter CI:DAW]. 24. Convention on the Rights of the Child, G.A Res. 44/25, at 166. U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (Nov. 20, 1989) [hereinafter CRC]. 25. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, at 261, U.N. GAOR, 45th Sess., Supp. No. 49, U.N. Doc. A/45/49 (Dec. 18, 1990) [hereinafter TCPMW]. 26. CRC, supra note 24, at art. 23, para. 1.

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does not mandate children with disabilities be treated or considered equal to children without disabilities. 27 Hence, except for the CRC's limited concern for disabled children, persons with disabilities are not yet a group with specific protection. In a 1993 report, a Special Rapporteur cautioned that in the absence of specific treaty protection, human rights abuses against the disabled would likely continue without redress. 28 Unfortunately, this prediction has largely been borne out. In the decade following the report, seventeen disabilityrelated complaints have been asserted under core United Nations instruments. Of these claims, thirteen were declared inadmissible by their respective monitoring committees. 29 The larger implication is that at present six hundred million persons with disabilities worldwide have implied but not actual human rights protection. B.

Soft Laws: United Nations Declarations and Resolutions

In contrast to hard law treaties that do not enumerate specific disability protections, a number of soft laws expressly provide for disabled individuals. 30 These include General Assembly designations of the International Year of the Disabled in 1981,31 and the International Decade 27. See CRC, supra note 24, at art. 23, pams. 1-3 ("[T]he disabled child has effective access to and receives education, training ... preparataion for employment and recreational opportunities in a manner conducive to the child's receiving the fullest possible social integration and individual development."). The equality of disabled children has, however, been emphasized by the United Nations Commission on Human Rights. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Rights of the Child, para. 22, U.N. Doc. E/CNA/RES/2001/75 (Apr. 25, 2001); U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Rights of the Child, para. 29, U.N. Doc. E/CNA/RES/2000/85 (Apr. 27, 2000); see generally Thomas Hammarberg, The Rights of Disabled Children-The UN Convention on the Rights of the Child, in HUMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 147. 28. See LEANDRO DESPOUY, REPORT ON HUMAN RIGHTS AND DISABLED PERSONS paras. 280-81 (1993), available at http://www.un.org/esa/socdev/enable/dispaperdesO.htm (noting that "persons with disabilities are going to find themselves in a legal disadvantage in relation to other vulnerable groups" because "unlike the other vulnerable groups. they do not have an international control body to provide them with particular and specitlc protection"). 29. The 1CESCR, the CRC, and the 1CPRAMW do not allow the assertion of individual complaints. Individual complaints can be brought under the ICCPR. the CAT, the CEDAW, or the ICERD. The website maintained by the office of the High Conm1issioner for Human Rights contains detailed information on the operation of the United Nations human rights treaty bodies. See Office of the U.N. High Comm'r for Human Rights, http://www.unhchr.ch (last visited Sept. 26, 2006). The decisions ofthe three relevant monitoring committees can be accessed through the Netherlands Institute of lluman Rights web page. See Neth. lnst. of !hunan Rights, Welcome to the Sim Documentation Site, http://sim.law.uu.nl/sim/Dochome.nsf (under case law) (last visited Oct. 6, 2006). 30. An overview of the basic documentation is maintained by a special unit of the Division for Social Policy and Development tram the United Nations Department of Economic and Social Affairs. See United Nations Enable Webpage, www.un.org/esa!socdev/enable. 31. International Year of Disabled Persons. G.A. Res. 36/77, at 176, U.N. GAOR, 36th Sess., Supp. No. 77, U.N. Doc. A/RES/36/77 (Dec. 8, 1981).

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of Disabled Persons from 1982-1991.32 The United Nations has also passed resolutions such as the Declaration on the Rights of Mentally Retarded Persons, 33 and the Declaration on the Rights of Disabled Persons. 34 Additionally, the General Assembly adopted a World Programme of Action Concerning Disabled Persons (WPA) to encourage the development of national programs directed at achieving equality for people with disabilities. 35 Most significant among the soft laws are the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules), 36 which are monitored by a Special Rapporteur. 37 The drawback to these soft laws is that, as resolutions, they lack legally binding power. 38 C.

The Proposed United Nations Convention

Acting on previous proposals to address the lack of specific human rights protection for disabled persons, 39 in December 2001 the General Assembly established an Ad Hoc Committee to consider enacting a disability-based human rights instrument. 40 The Ad Hoc Committee in turn 32. Implementation of the World Programme of Action Concerning Disabled Persons, G.A. Res. 37/53, at 186-87, para. 11, U.N. GAOR, 37th Sess., Supp. No. 53, U.N. Doc. A/RES/37/53 (Dec. 3, 1982). 33. Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2856 (XXVI), at 93, U.N. GAOR, Supp. No. 29, U.N. Doc. A/8429 (Dec. 20, 1971). 34. Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), at 88, U.N. GAOR, Supp. No. 34, U.N. Doc. A/10034 (Dec. 9, 1975). 35. World Programme of Action Concerning Disabled Persons, G.A. Res. 37/52, at 185, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/RJ:::S/37/52 (Dec. 3, 1982) [hereinafter World Programmej. 36. Standard Rules on the Equalization of Opportunities for Persons With Disabilities, G. A. Res. 48/96, at 202, U.N. GAOR, 48th Sess, Supp. No. 49, U.N. Doc. A/RES/48/96 (Dec. 20, 1993) [hereinafter Standard Rules]. 37. The first Special Rapporteur for Disability, Bengt Lindquivist of Sweden, was appointed in 1994, and had his commission renewed in 1997 and in 2000. See United Nations Enable, The Special Rapporteur on Disability of the Commission for Social Development, http://www.un.org/ esa!socdev/enable/rapporteur.htm (last visited Oct. 6, 2006). The current Special Rapporteur for Disability is Sheikha Hissa AI Thani of Qatar. Jd. For an insider's perspective on the role of the Special Rapporteur, see Bengt Lindqvist, Standard Rules in the Disability Field-A New United Nations instrument, in HUMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 63. 38. See, e.g., The Protection of lluman Rights in the Context of lluman Immunodeficiency Vims (HIV) and Acquired Immunodeficiency Syndrome (AIDS), U.N.C.H.R. Res. 1997/33, U.N. ESCOR, 53rd Sess., U.N. Doc. E/CN.4/1997!150 (Apr. II, 1997); The Protection of Persons with Mental lllnesses and the Improvement of Mental Health Care, G.A. Res. 46/I 19, at 188, U.N. GAOR, 46th Sess., Supp. No. 49, U.N. Doc. A/46/49 (Dec. 17, 1991). 39. Notably, in 1987, Italy proffered a convention draft during the forty-second session of the General Assembly. See U.N. GAOR, 42d Scss., 16th mtg., U.N. Doc. A/C.3/42/SR.16 (Oct 19, 1987). Sweden did the same two years later at the General Assembly's forty-fourth session. See U.N. GAOR, 44th Sess., 16th mtg., U.N. Doc. A/C.3/44/SR.I6 (Oct. 24, 1989). 40. Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, G.A. Res. 561168, U.N GAOR, 56th Sess., Supp. No. 168, U.N.

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authorized a working group to draw up a human rights treaty proposal. 41 On January 16, 2004, the working group issued "Draft Articles"; on August 25, 2006, the last day of its eighth session negotiating and amending the proposed treaty, the Ad Hoc Committee adopted the revised Draft Articles. 42 The General Assembly is likely to adopt the convention during the sixty-first session. The Draft Articles reaffirm the seven core treaties 43 and operationalize their content. In pertinent part, the Articles state their purpose as "to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities," 44 and enunciate essential principles guaranteeing disabled individuals "individual autonomy and independence," "full participation," and "inherent dignity and worth."45 Thus the Draft Articles include both first- and second-generation rights, 46 and expressly call attention to their indivisibility. 47 By way of enforcement, the proposed instrument mandates collecting statistics and submitting reports to

Doc. i\/RES/56/168 (Dec. 19, 2001). i\ detailed description of the political process behind the United Nations decision to go forward with a disability human rights convention is set forth in the (United States) National Council on Disability (NCD), Newsroom, UN Disability Convention Topics at a Glance: History of the Process, http://www.ncd.gov/newsroom/publications/2003/history_process.htm (last visited Oct. 3, 2006). 41. Ad Hoc Comm. on a Comprehensive and Integral International Convention on the Prot. & Promotion of the Rights & Dignity of Pers. with Disabilities, Report of the Working Group to the Ad Hoc Committee, para. 1, U.N. Doc. A/AC.265/2004/WG.l (Jan. 27, 2004). The working group included twelve nongovernmental organizations ("NGOs"). See id. at para. 2. The inclusion ofNGOs at this stage was unprecedented in the normal course of treaty development at the United Nations, and can be interpreted as acquiescence to NGOs' assertion of "nothing about us without us." Nonetheless, a countersignal was also sent to the disability community by locating the working group in New Yorkthe location of United Nations expertise on soft laws-rather than in Geneva, where core human rights treaties are deliberated. 42. See Ad Hoc Conm1. on a Comprehensive and Integral International Convention on the Prot. & Promotion of the Rights & Dignity of Pers. with Disabilities, Draft Convention on the Rights of Persons with Disabilities and Draft Optional Protocol (2006), available at http://www.un.org/esa/socdev /enable/rights/ahc8adart. htm [hereinafter Draft Articles]. 43. !d. at pmbl., para. d. 44. Jd. at Article I. The Draft Articles state this goal is to be brought about through the use of "international cooperation." Jd. at para. j; see also CRC, supra note 24, at annex, pmbl. ("[r]ecognizing the importance of international co-operation"); CEDAW, supra note 23, at 194 ("[a]ffirming that the strengthening of ... mutual cooperation among all States" is necessary for etfectuation). 45. Draft Articles, supra note 42, at pmbl. (1), (k), (a). 46. Among the first- and second-generation rights enumerated are: rights to life, equality, expression, privacy, education, employment, health. habilitation and rehabilitation, social benefits, political and social participation, access to public venues, mobility independence, recreation, as well as freedom from discrimination, torture and abuse.Jd. at arts. 10, 12, 21, 22, 24, 27, 25, 26, 28, 29, 30, 9, 18, 30, 15-16. For a discussion of how these rights intersect and are harmonious with the capabilities approach, see infra Part TTT.B. 47. Drqji Articles, supra note 42, at pmbl., para. c ("Reaftirming the universality, indivisibility and interdependence of all human rights and fimdamental freedoms .... ") (emphasis omitted).

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domestic monitoring bodies, 48 developing national policies for disabled citizens, 49 generally promoting positive attitudes toward persons with disabilities, 5° and establishing a treaty body similar to those of the existing seven core conventions. 51 Unfortunately, the Draft Articles leave several central terms, including "disability" and "accessibility," conspicuously undefined 52 because of political motivations. 53 Yet the Draft Articles do expansively define "discrimination" as "any distinction, exclusion or restriction" that affects "the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms." 54 The Draft Articles, and the definitions included therein, indicate a significant shift in how the international community views human rights, suggesting a willingness to rethink the sparse human rights protections specifically provided to persons with disabilities. II THE SOCIAL MODEL OF DISABILITY

The social model of disability asserts that contingent social conditions rather than inherent biological limitations constrain individuals' abilities and create a disability category. Beginning in the 1970s, international soft laws addressing disability have increasingly adopted precepts from the social model. Nevertheless, because advocates have limited the social model to formal equality theory, its application is limited within the human rights arena.

48. See id. at art. 31 ("States parties undertake to collect appropriate information, including statistical and research data."); id. at art. 33 (States parties are responsible for establishing systems for monitoring implementation). 49. See id. at art. 4. para. 1:3; art. 33. 50. See id. at art. 8. These measnres include instigating "public awareness campaigns," mainstreaming public education, and "encouraging'" positive images of the disabled in the mass media. !d. at art. 8, para. 2 (a)-( c). 51. Draft Articles, supra note 42, at art. 34. 52. See id. at art. 2 (definitions). 53. Specifically, to secnre broad support in the General Assembly, several of the Working Group members believed these definitions should be pnrposely left vague so that States parties could interpret them according to their own legal and social cultures. Put another way, there was strong feeling among the participating government bodies that human rights enforcement is chiefly a local issue. As related in the NCD newsroom, the United States took an even more removed position, asserting that the matter of disability-related rights. in any form, was a "largely domestic mission" that individual states ought to pnrsuc on their own initiatives. See Nat'! Council on Disability (NCD) Newsroom, supra note 40 (quoting Ralph Boyd, former U.S Assistant Attorney General for Civil Rights). For that reason, the United States rarely participated in the convention process and does not intend to ratify any resultant instrument. See id. (U.S. would '"participate in order to share our experiences ... [but] not with the expectatoin that we [the U.S.] will become party to any resulting legal instrument.'"). 54. See Draft Articles, supra note 42, at art. 2.

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The Social Model versus the Medical Model

The common misperception of disability conforms to the "medical" model, which views a disabled person's limitations as inherent, naturally and properly excluding her from participating in mainstream culture. Under this framework, people with disabilities are believed incapable of performing social functions because of medical conditions that impair various major life activities. As a consequence of this notion, disabled persons are either systemically excluded from social opportunity-such as receiving social welfare benefits in lieu of employment-or are accorded limited social participation-such as the case of educating disabled children in separate schools. 55 In contrast to the medical model, disability studies scholars have long argued for an understanding of disability through a "social" model. 56 This framework maintains that the socially engineered environment and the attitudes reflected in its constmction play a central role in creating "disability." According to the social model, collectively mandated decisions determine what conditions comprise the bodily norm in any given society. 57 Thus, factors external to a disabled person's limitations are really what determine that individual's ability to function. 58 Just as some cultures view female leaders as less capable than male leaders, 59 most 55. See generally Kenny Fries, Introduction, in STARING BAcK: THE DISABILITY ExPERIENCE FROM THE INSIDE OuT 6-7 (Kenny Fries ed., 1997) (noting that "[the medical] view of disability ... puts the blame squarely on the individual"); CLAIRE H. LIACHOWI'IZ, DISABILII Y AS A SociAL CoNSTRUCT (1988) ([T]he "medical/pathological paradigm" of disability stigmatizes the disabled by conditioning their inclusion only "on the terms ofthe able bodied majority."). 56. Disability studies is an academic discipline analogous to that of critical race or feminist theory, with dedicated university departments. See Gary L. Albrecht et al., Introduction: The Formation of Disability Studies, in HANDBOOK OF DISABILITY Sn;DIES 1, 1-8 (GARY L. ALBRECT et aJ. eds., 2001). 57. See generally Richard K. Scotch & Kay Schriner, Disability as Human Variation: implications for Policy, 549 ANNALS AAPSS 148 (1997). 58. See Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Jssues and Agendas. 4. S. CAL. REv. L. & WoMEN's STUD. 97 (1995); Ron Amundson, Disability, Handicap, and (1992). The framework derives from both British and American the Environment, 23 J. Soc. PHIL. disability rights scholars, although the latter have written more extensively on the legal implications of the model. Some scholars credit Michael Oliver with orginating the social model theory. See MICHAEL OLIVER, SOCIAL WORK WITH DISABLED PEOPLE 23 (1983) (the social model is ""nothing more fundamental than a switch away trom focusing on the physical limitations of particular individuals to the way the physical and social environments impose limitations on certain groups or categories of people"). Political scientist Jacobus tenBroek made an early contribution to the development of the social model of disability in his classic article. See Jacobus teni3roek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CALIF. L. REv. 841, 842 (1966) (demonstrating how people with disabilities were historically held to higher duties of care in respect to the law of torts because they were perceived as inherently less able to engage in social functions). 59. See, e.g., THE ETHNOGRAPHY OF MALINOWSKI: THE TROBRIAND ISLANDS I9IS-I8 Ill, 12831 (Michael W. Young ed., 1979) (the Trobriand society is a matrilineal society, believing that fathers have "nothing to do with the formation of [their child's] body," and that all lineage passes through the

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societies have historically assumed disabled persons are less capable than nondisabled persons. 60 The social model underscores the manner in which disability is culturally constructed. 61

B.

The Social Model and United Nations Instruments

International resolutions relating to disabled persons were initially steeped in the medical model. 62 Particularly influential among post-World War II international instruments was the "whole man" schema of

mother's side of the family); ROBERT BRIFFAULT, THE MOTHERS: THE MATRIARCHAL THEORY OF SociAL ORIGINS 194-95 ( 1931) (classifying various American Indian tribes, such as the Navajo and Cheyenne, as matriarchal). 60. See, e.g, Jerome E. Bickenbach, Disability Human Rights, Law, and Policy, in HANDBOOK OP DISABILITY STUDIES supra note 56, at 565, 567 (noting the commonly held assumption that "[ d]isability is an abnormality, a lack, and a limitation of capacity"). The results of a recent study of prevailing attitudes towards individuals with intellectual disabilities across ten very different countries reflect this misperception. See MULTINATIONAL STLDY OF ATTITUDES TOWARD INDIVIDUALS WITH INTELLECTUAL DISABILITIES: GeNERAL FINDING AND CALLS TO ACTION (2003), available at http://www.soill.org/pdfs/multinational_study.pdf. However, a minority of cultures believe people with disabilities are especially capable of various functions. ln certain Asian countries-for example China-visually-impaired people are frequently trained and valued as masseuses. Moreover, it is illegal for those with ordinary vision to be employed as a masseuse in Taiwan. See DPP City Councilors Say Lein Received Sighted Massage, TAIPEI TiMES, Sept. 27, 2003, at 3, available at http://www .taipeitimes.com/News/taiwan/archives/2003/09/27/2003069422. Indeed, there are social anthropologists who claim that the notion of "disability," at least as a negative concept, is Western in origin and remains unknown to certain cultures, including some African societies. See, e.g., Aud Talle, A Child is a Child: Disability and Equality among the Kenya Maasai. in DISABLLITY AND CuLTURE 56 (Benedicte Ingstad & Susan Reynolds Whyte eds., 1995); Benedicte Ingstad, Mphu ya Mudimu-A Gift from God: Perspectives on "Attitudes" l'uward Disabled Persons. in DISABILITY AND CuLTURE, supra, at 246. 61. Philosopher Anita Silvers provides an eloquent application of the social model of disability to the accommodations required by the Americans with Disabilities Act (ADA), and her underlying theory applies equally well to the statute's international progeny. ANITA SiLVERS, Formal Justice. in DISABILITY, DIFFERENCE, DISCRIMINATION: PERSPECTIVES ON JUSTICE IN BIOETHJCS AND PLBLIC POLICY 13 (Anita Silvers et al. eds., 1998). She argues that being physiologically anomalous is viewed as abnorn1al only because a dominant group imposed conditions favorable to its own circumstances, and not because of"any biological mandate or evolutionary triumph." Jd. at 73. Accordingly, the social model of disability recognizes the source of disabled people's relative disadvantage as a hostile environment that is "artificial and remediable" instead of"natural and inunutable." Jd. at 74-75. "lfthe majority of people, instead of just a few, wheeled rather than walked, graceful spiral ramps instead of jarringly angular staircases would connect lower to upper floors of buildings." Jd. at 74. Thus, a wheelchair-user experiences disability through antagonistic surroundings, including lack of access to workplaces, educational programs, medical services, and other areas open to the public. Because the ADA accommodations seek to eliminate subordination of individuals with disabilities, Silvers argues that the statute implicitly utilizes the social model of disability, and as such is a product of formal and equalizing justice. 62. The same may be said for both the United States and Europe. See, e.g, RICHARD K. SCOTCH, FROM GOOD WILL TO CiVIL RIGHTS: TRANSFORMING FEDERAL DISABILITY POLICY (2d ed. 2001) (assessing the motivations impelling United States policy); Lisa Waddington, Reassessing the Employment of People with Disabilities in Europe: From Quotas to Anti-Discrimination Lmvs, 18 COMP. LAB. L.J. 62 (1996) (examining the theories informing European employment policies).

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vocational rehabilitation. 63 This method sought to "treat" disabled persons to facilitate their social participation. In this way, the method further instantiated the medical model's notion that people with disabilities, rather than society, must change. 64 For example, the General Assembly and the United Nations Economic and Social Council adopted a series of resolutions during the 1950s and 1960s directed both at preventing future disability and at rehabilitating existing disabilities. 65 Indeed, the title of the Economic and Social Council's 1950 resolution-Social Rehabilitation of the Physically Handicapped-indicates a policy targeting disabled people as the locus of treatment, rather than the external environment. However, beginning in the 1970s international instruments evidenced a gradual shift from the medical model to the social model of disability. 66 Consequently, both the 1971 Declaration on the Rights of Mentally Retarded Persons and the 1975 Declaration on the Rights of Disabled Persons acknowledge the equality of disabled individuals. 67 Yet, these instruments possessed vestiges of the medical model by assuming individuals are disabled due to "special" medical problems that require segregated social services and institutions as remedies. 68 It was the following decade that saw a more thorough adoption of the social model of disability in United Nations instruments. 69 Acting on the aphorism "[f]ull participation and equality," the United Nations proclaimed 1981 the International Year of the Disabled, and the

63. The term originates with political scientist Rnth O'Brien. See RuTH ANN O'BRIEN, CRIPPLED JUSTICE: THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE (2001). 64. See HOWARD A. RUSK, REHABILITATION MEDICINE (1964); HENRY HOWARD KESSLER, REHABILITATION OF THE PHYSICALLY HANDICAPPED (2d ed. 1953). The timing of the medical model, as advanced by these two medical practitioners, was hardly coincidental. Scientific advances made during World War 11 resulted in higher survival rates for severely wounded soldiers. See, e.g., ScRGERY IN WORLD WAR II: NEUROSURGERY (John Boyd Coates, Jr. ed., 1959) (describing medical advances in neurosurgery, particularly in relation to treating spinal cord injuries). 65. See MARTA RITA SAULLE, DISABLED PERSONS AND INTERN ATTONAL 0RGANTZA TTONS (1982) (providing a catalog of these resolutions); see also U.N. Econ. & Soc. Council [ECOSOC], Social Rehabilitation of the Physically Handicapped, Report of the Social Commission, 6th Sess., U.N. Doc. No. E/AC.7./L.24 (July 13_ 1950). 66. International soft laws are comparable to legislation passed in the United States and Europe over that san1e period requiring the provision of reasonable accommodation as an an1eliorative to disabling environments. See generally BRIAN J. DOYLE, DISABILITY DISCRIMINATION: THE NEW LAW (1996); CHRISTOPHER G. BELL, U.S. COMM'N ON CIVIL RIGHTS, ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES (1983). 67. for example, the Declaration on the Rights of Mentally Retarded Persons declares that persons with disabilities have the same civil and political rights as other human beings. Declaration on the Rights of Mentally Retarded Persons, supra note 33, at para. 4. 68. See, e.g., id. at pmbl. (emphasizing the need to protect disabled persons and their access to segregated services); Declaration on the Rights of Disabled Persons, supra note 34, at para. 8 (underscoring the needs of disabled persons to "special" services). 69. QuiNN ET AL., supra note L at 30 (characterizing the change as "an irreversible shift").

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succeeding decade as the International Decade of Disabled Persons. 70 More significantly, in 1982 the General Assembly also enacted the path-breaking WPA. 71 Although this pronouncement reiterated the twin medical model goals of preventing and rehabilitating disability, it also advocated equalized opportunities for the disabled. 72 The latter aspiration was defined as "the process through which the general system of society, such as the physical and cultural environment" is rendered accessible. 73 Moreover, the WPA emphasized the insufficiency of rehabilitation to achieve this purpose. Instead, "[e ]xperience shows that it is largely the environment which determines the effect of an impairment or a disability on a person's daily life."74 Continuing the trend toward full adoption of the social model, the 1990s were "a banner period for disability law." 75 Passed in 1993, the Standard Rules remain the central United Nations document regarding disabled persons. The Standard Rules build on the WPA, both emphasizing the equality of people with disabilities and defining disability as a byproduct of social construction. For example, the instrument underscores the need to change general societal misperceptions about the disabled as well as provide sufficient services to support their full inclusion. 76 Though the Standard Rules are monitored by a Special Rapporteur, 77 the instrument is soft law and legally unenforceable. The Standard Rules nevertheless stress that States parties are under "a strong moral and political commitment" to ensure "the equalization of opportunities" for disabled persons. 78 70. World Programme, supra nole 35, al 185. 71. !d. 72. Equalizing opportunities was detlned as "the process through which the general system of society, such as the physical and cultural environment" is rendered accessible. World Programme of Action Concerning Disabled Persons 1 (1982). available at http://www.nn.org/esa!socdev/ enab1e/diswpa0 1.htm. 73. Jd. 74. See id. at 2. 75. Theresia Degener, International Disability Law-A New Legal Subject on the Rise: The Interregional Experts' Meeting in JJong Kong, December 13-17, 1999, 18 BERKELEY J. INT'L L. 180, 184 (2000). 76. See Standard Rules, supra note 36, at rules I, 4. The social model of disability is reflected in the articulation of the Standard Rules' aspirations: "the planning of societies and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation." Id. at introduction, para. 25. 77. Reports issued by the Special Rapporteur are available at U.N. Enable, The Special Rapporteur on Disability of the Commission for Social Development, http://www.un.org/esa! socdcv/cnablc/rapportcur.htm. 78. For a discussion of the uncnforccability of the Standard Rules, sec Dimitris Michailakis, The Standard Rules: A Weak Instrument and a Strong Commitment, in DISABILITY, DIVERS-ABILITY AND LEGAL CHANGE 117 (Melinda Jones & Lee Ann Basser Marks eds., 1999). The Standard Rules stress that States parties are under a strong moral and political commitment to ensure the equalization of opportunities for disabled persons. See Standard Rules, supra note 36, at introduction, para. 14.

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The Vienna Declaration and Programme of Action (Vienna Declaration) was also enacted in 1993. 79 It was not directed specifically toward disability rights, 80 but it nonetheless stressed the prevalence of disabled persons. Moreover, the Vienna Declaration assisted in accelerating the trend toward the social model of disability by maintaining that disabled persons "should be guaranteed equal opportunity through the elimination of all socially determined barriers," including any "physical, financial, social or psychological" obstacles that "exclude or restrict full participation in society."81 Finally, passage of the Americans with Disabilities Act (ADA) during this period bears special notice. 82 While domestic in scope, it has to date influenced more than forty countries to enact similar-and at times nearly verbatim-legislation. 83 The European Union's Employment Framework Directive adopts key ADA definitions, 84 and the Draft Articles follow suit. 85 Accordingly, international disability rights advocates point to the statute as a model worthy of emulation. 86 The social model has also been well supported in the new millennium. The General Assembly World Summit on Social Development acknowledged the necessity of changing the socially constructed environment in accordance with the Standard Rules "to empower persons Moreover. the Standard Rules obligate States parties "to create the legal bases ... to achieve the objectives of full participation and equality for persons with disabilities," to "ensure that organizations of persons with disabilities are involved in the development of national legislation concerning" their rights, and to eliminate "[a]ny discriminatory provisions against persons with disabilities." ld. at rule 15. 79. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, U.N. Doc A/CONF. 157/24 (July 12, 1993) lhereinafter Vienna Declarationj. 80. !d. at para. 5 ("All human rights are universal, indivisible and interdependent and interrelated."). 81. Jd. at para. 64 (disabled persons "should be guaranteed equal opportunity through the elimination of all socially determined barriers," including any "physical, financial, social or psychological" obstacles that "exclude or restrict full participation in society"). 82. 42 U.S.C. §§ 12101 (2000). 83. See Theresia Degener & Gerard Quinn, A Survey of International, Comparative and Regional Disability Law Reform, in DISABILITY RIGHTS LAw AND POLICY: INTERNATIONAL AND NATIONAL PERSPECTIVES 3 (Mary Lou Breslin & Silvia Yee eds., 2002). 84. For a discussion of the role and content of reasonable acconunodation under the EU directive, see Lisa Waddington. The Framework Employment Directive from a Disability Perspective: Reasonable Accommodation and Positive Action, in DISABILITY RIGHTs' AcTIVIST AND ADVOCATES TRAINING MANUAL 19 (2005). 85. See, e.g., Drafi Articles, supra note 42. at art. 27, para. i (requiring States parties to malce reasonable accommodations). 86. See, e.g., Katharina C. Heyer, The ADA on the Road: Disability Rights in Germany, 27 LAw & Soc. INQUIRY 723 (2002); Eric A. Besner, Employment Legislation for Disabled Individuals: What Can France Learn from the Americans with Disabilities Act?, I6 CoMP. LAB. L.J. 399 (1995). Despite this trend, there are some disability rights advocates, including myself, who caution against adopting ADA-type rights protection exclusively. See mfra Part I!. C.

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with disabilities to play their full role in society."87 But perhaps the most progressive enunciation in an international instrument is found in the Draft Articles, which recognize "the importance of accessibility to the physical, social and economic environment" as a means of "redressing the profound social disadvantage of persons with disabilities." 88 By this recognition, the Draft Articles transcend the social model and adopt a "human right to development" approach, integrating first- and second-generation rights. C.

Limitations of the Social Model

The above historical overview attests to the social model's powerful and constructive influence on international and domestic instruments. Nevertheless, because the framework's advocates have invoked only formal equality theory, the model encounters two obstacles. First, because it expressly relies on notions of corrective justice, the social model must overcome erroneous but strongly held notions that the world inevitably excludes disabled persons. Second, and of greater significance, because it exclusively concentrates on first-generation rights, the social model is prevented from invoking a full range of second-generation rights. In asserting that the socially constructed environment creates disabling conditions, the social model avers that altering that environment allows disabled persons to participate in society at large. Reasonable workplace accommodations are a typical example of correcting artificially prejudicial conditions previously held out as "neutral." Providing accommodations in the workplace changes existing hierarchies, ultimately suggesting a lack of inevitability in the structure and conception of particular occupations. By removing unnecessary barriers to participation, accommodations bring about equality as conceived by formal justice. 89 However, because the social model is based exclusively on this notion of corrective justice, it must overcome the deeply entrenched fallacy that society justifiably excludes disabled persons due to their inherent limitations. 90 In seeking to win this fight, social model advocates have taken an over-inclusive position of rejecting all, instead of many or most, disability-related exclusions as arising from arbitrarily selected biological 87. G.A. Res. S-24/2, para. 66, U.N. Doc A/RES/S-24/2 (July 1, 2000). See also Theresia Degener, Disabled Persons and !Tuman Rights: The Legal Framework, in HuMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 9, 20-33. 88. Drqfi Articles, supra note 42, at pmbl., paras. t, v. 89. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REv. 579 (2004) (arguing that ADA-mandated accommodations arc consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms) [hereinafter Stein, Same Struggle]. 90. The view is so prevalent that one scholar has termed it "canonical." Christine .Tolls, Antidiscrimination and Accommodation, 115 HARV. L. REv. 642, 643-44 (2001).

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norms. 91 This effort is unnecessary because correcting exclusionary conditions (and the attitudes supporting them) need not be contingent on the application of first-generation rights alone. Instead, social inclusion is better facilitated under a human rights paradigm that applies civil and political rights (that equalize treatment) in combination with economic, social, and cultural rights (that equalize opportunity). This brings forward the second, and more important, problem: while the social model's precepts are essential to civil rights assertions, they ultimately fall short within the human rights field. The social model draws an inclusive, yet firm line at equal treatment of equally situated individuals, 92 thereby effectively excluding additional second-generation support for disabled persons not contingent on narrower corrective justice notions. 93 By contrast, second-generation rights recognize that all disabled persons are entitled to equal opportunities because of their equal humanity, not because they reach levels of functional sameness, 94 and thereby allows for individual differences among people with disabilities. In so doing, second-generation rights cover two circumstances. They encompass entitlements that benefit persons with disabilities who fall outside standard sameness arguments. This is because some individual variations are not accounted for, even when using broad and inclusive principles, for instance those contained in the architectural concept of Universal Design. 95 Second-generation rights also include measures that 91. A particularly strong version of this assertion is that of feminist and disability rights advocate Susan Wendell who avers that "the entire physical and social organization of life" has been created with the notion in mind that "everyone wlasj physically strong, as though all bodies were shaped the same, as though everyone could walk, hear, and see well, as though everyone could work and play at a pace that is not compatible with any kind of illness or pain." SusAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 39 (1996). Wendell's point, although valid. should not be overstated. Because I generally agree with the disability studies perspective, but disagree on the extent of its application, I have used the term "artitlcial" to mean avoidable (because it is either arbitrary and/or can be remedied through a manageable cost) when discussing ADA accommodations. See Stein, Same Struggle, supra note 89. 92. In other words, the social model is predicated on treating like cases alike. For what is perhaps the earliest exposition of this theory, see ARISTOTLE, NICOMACHEAN ETHICS ]]8-19 (Martin Ostwald trans., 1962) (professing that things that are alike should be treated alike). 93. Social, economic, and cultural rights are derived from the tield of social justice which advocates treating all individuals equally, whether or not they are in fact equal. See, e.g., JoHN RAWLS, A THEORY OF JuSTICE 302-03 (1971) (defining distributive justice generally as the theory that "[a]ll social primary goods-liberty and opportunity, income and wealth, and the bases of self-respect-are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored"). 94. "Human rights are, literally, the rights that one has simply because one is a human being. Human rights are equal rights: one either is or is not a human being, and therefore has the same human rights as everyone else (or none at all)." JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 10 (2003). 95. The central tenet of Universal Design is an "approach to creating environments and products that are usable by all people to the greatest extent possible." R. Mace et al., Accessible

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are necessary to effectuate first-generation rights. Thus, while firstgeneration rights may prohibit discrimination in employment, secondgeneration rights make labor market participation possible by providing health care, education, and employment preferences and quotas. By limiting their advocacy to first-generation rights, social model proponents have neglected further empowering possibilities. 96 The adoption of a "disability human rights" model can solve these limitations. ITT THE DISABILITY HUMAN RIGHTS PARADIGM

This Part outlines the disability human rights paradigm, which integrates the best features of the social model of disability, the human right to development, and Martha Nussbaum's capabilities approach to create a comprehensive view of rights. The social model stresses society's role in constructing disability and its responsibility to rectify disabilitybased exclusion. Yet, because advocates have justified this scheme exclusively though formal justice notions, the model has neglected economic, social and cultural rights. The human right to development, which underlies the Draft Articles, seamlessly combines first- and secondgeneration rights, thus avoiding a major shortcoming of the social model of disability. At the same time, this framework is as vulnerable to monitoring, content, and resource prioritization concerns as are more traditional versions of human rights. Martha Nussbaum's capabilities approach Environments: Toward Universal Design, in DESIGN INTERVENTIONS: TowARDS A MORE HuMANE

ARCHITECTURE 155, 156 (Wolfgang Prieser et al. eds., 1991). Although the inclusive natnre of Universal Design extends beyond disability, e.g., Selwyn Goldsmith, Access all Areas, 213 ARCHITECTs' J. 42 (2001) (asserting that universal design encompasses not only people with disabilities but also parents with small children and women forced to wait for pubic toilets), it is nevertheless frequently described as a disability-specific issue. For rebuttals of this perspective, see ROBERT IMRIE, DISABILITY AND THE CITY: iNTERNATIONAL PERSPECTIVES (1996). 96. Clarification is in order. Disability rights advocates applying the social model to this hypothetical instance would surely argue that both public transportation systems and health care systems that excluded disabled persons based on socially contingent factors (e.g., physically inaccessible buses and insurance policies that exclude coverage for people with AIDS) were artificial in nature (because there was no reason to have buses with steps as opposed to ramped ones, and that there was no intrinsic difference between treating pneumonia arising from the flu as opposed to lllV). What disability rights advocates have not traditionally done is link the two concepts so that equality in the artificially excluded workplace also mandates equality in the artificially excluded public transportation and health care areas. The reason for this disconnect is that the two arguments cannot be joined so long as the underlying basis of their assertions is formal justice, meaning that the extent of disabled versus non-disabled equality is assessed in terms of sameness under civil rights statutes that focus on the acts or omissions of one actor (whether an employer or a public service entity) rather than of society at large. This subtle weakness of disability rights advocacy has recently been taken up by Samuel Bagenstos. He points out that as far as the ADA is concerned, there is no statutory reason why the provision of a reasonable accommodation ought to stop at the workshop door. Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 26-32 (2004) (discussing the importance of proper health care to ensure greater employment opportunities).

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creates a fertile space within which to understand the reach and content of the human right to development. However, because her scheme requires levels of minimal function as a condition precedent to acknowledging an individual's equal humanity and social patiicipation, it is fundamentally under-inclusive of some people with intellectual disabilities, conditions the inclusion of others through proxies, and inadequately accounts for the development of individual talent. By harnessing the assets of the human right to development and the capabilities approach, the disability human rights paradigm overcomes the foregoing limitations. It both acknowledges the role that social circumstances play in creating disabling conditions and insists on the development of all individual talent.

A.

The Human Right to Development

The human right to development is the most recent theory of human rights and underlies contemporary treaties, including the Draft Articles. This third-generation of human rights integrates civil and political rights with economic, social, and cultural rights. 97 Consequently, the human right to development avoids a major conceptual and practical shortfall of the social model of disability. Nevertheless, this framework can neither avoid nor satisfy three concerns endemic to human rights treaties: the efficacy of monitoring devices, the sufficiency of content, and prioritization issues when State resources are limited. 98 Though of comparatively recent origin, the right to development has gained purchase over the past several years. In 1986, the General Assembly's Declaration on the Right to Development established development as a human right. 99 Subsequently, the 1993 Vienna Declaration proclaimed the right to development was "a universal and inalienable right" as well as "an integral pmi of fundamental human rights." 100 In 1998, the United Nations Commission on Human Rights approved a resolution requiring the United Nations Economic and Social 97. See generally Stephen P. Marks, Emerging Human Rights: A New Generation for the 1980s?, 33 RcTGERS L. REv. 435,435-52 (1981). 98. For additionaL more tangential concerns, see Stephen P. Marks, The Human Right to Development: Between Rhetoric and Reality, 17 HARV. HuM. RTS. J. 137 (2004). 99. Declaration on the Right to Development, G.A. Res. 41/128. at 183. Annex, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/128 (Dec. 4, 1986). A few General Assembly resolutions referenced the right to development prior to the DRD. See, e.g., U.N. ESCOR, 33d Sess., 35th Sess., Supp. No 6, at 107, U.N. Supp. No. 6, at 74-75, U.N. Doc. E/CN.4/1257; U.N. Doc. E/CN.4/1347; U.N. ESCOR, 37th Sess., Supp. No 5, at 238, U.N. Doc. E/CN.4/1475. 100. Vienna Declaration, supra note 79, at para. 10; see also High Comissioncr for the Promotion and Protection of All Human Rights, G.A. Res. 48/141, at 261, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/RES/48/141 (Dec. 20, 1993) (General Assembly mandate that the High Commissioner for Human Rights organize "a new branch whose primary responsibilities would include the promotion and protection of the right to development") [hereinafter High Commissioner].

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Council to appoint both an Independent Expert and an open-ended working group on the right to development. 101 The Office of the High Commissioner on Human Rights maintains a research department to coordinate development tasks within the United Nations system. 102 Though lacking legal enforceability, the human right to development nonetheless persuaded academics, 103 United Nations agencies, 104 and States 105 to accept the inextricable interrelationship among first- and second-generation human rights. Unfortunately, for reasons development scholar Peter Uvin decries as both outmoded and counter-productive, this generational rights divide manifested into a partition of labor and perceived expertise among international actors. 106 Influenced by the human right to development, many experts now share Uvin's belief that first- and secondgeneration rights are neither conceptually, nor pragmatically immiscible. 107 Cass Sunstein finds exclusive focus on one of these types of rights I 01. E. S.C. Res. 72, at 229, U.N. FSCOR, 54th Sess., Supp. No. 3, U.N. Doc. F/CN.4/1998/177 (1998). I 02. High Comissioner, supra note I 00, at 262 (mandating the OHCHR "Research and Right to Development Branch" to "[r]ecognize the importance of promoting a balanced and sustainable development for all people" and to "to enhance support from relevant bodies of the United Nations system for this purpose." For the Independent Expert's perspective, see Arjun Sengupta, Development Co-operation and the Right to Development, in HuMAN RJGHJS AND CRIMINAL JusucE FOR JHE DOWN !RODDEN: ESSAYS IN HONOUR Ot ASBJORN EWE 371 (Morten Bergsmo ed., 2003). 103. See, e.g., Philip Alston, Making Space for New Human Rights: The Case of the Right to Development, I HARV. HuM. RTs. Y.B. 3 (1988) [hereinafter Alston, Making Space for New Human Rights]; see also Henry J. Steiner, Social Rights and Economic Development: Converging Discourses?, 4 BuFF. HuM. RTS. L. REv. 25 (1998); James C.N. Paul, The Human Right to Development: Its Meaning and Importance, 25 J. MARSHALL L. REv. 235 (1992); Aune Orford, Globalization and the Right to Development, in PEOPLE'S RIGHTS 127 (Philip Alston ed., 2001). 104. For instance, the United Nations Development Programme now explicitly connects these rights in its annual Human Development Reports. See U.N. DEY. PROGRAMME, HUMAN DEVELOPMENT REPORT 2003, MILLENNIUM DEVELOPMENT GOALS: A COMPACT AMONG NATIONS TO END HUMAN PovERTY (2003), available at http://hdr.undp.org/reports/global/2003/ [hereinafter MILLENNIUM DEVELOPMENT COMPACT]. 105. See Alan Rosas, The Right to Development. in EcoNOMIC, SOCIAL AND CuLTURAL RIGHTS 247. 248 (Asbjom Eide et al. eds., 1995) (averring that the human right to development gave developing nations a moral basis in which to ground their demands for more equitable distribution of worldwide resources from more developed nations). 106. PETER UVJN, HUMAN RIGHTS AND DEVELOPMENT (2004). Uvin argues against this prevailing notion by pointing out that both agendas have similar and overlapping goals. To give one example, he notes that if a human rights perspective is added to a traditional development goal of providing subsistence, then the problem of guaranteeing sufficient food in a country is revised towards identifying the factors that limit that availability, that is, "the wide range of mechanisms that exclude some groups trom services or resources the state makes available; the way discriminatory employment, land, credit, inheritance or education policies." Jd. at 161. 107. See, e.g., HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HuMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 247 (2d ed. 2000) ("The interdependence principle, apart from its use as a political compromise between advocates of one or two covenants, retlects the fact that the two sets of rights can neither logically nor practically be separated in watertight compartments."); C. B. MACPHERSON, DEMOCRATIC THEORY: ESSAYS IN RETRIEVAL 111-12 (1973) (disputing Berlin's fixation on negative liberty by pointing out the material prerequisites to meaningful choices).

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theoretically artificial and unsatisfying. 108 Jack Donnelly goes further, asserting all human rights "require both positive action and restraint by the State if they are going to be effectively implemented." 109 As an example, he points out that the right to vote requires both freedom from restraints on political expression and affirmative government expenditure in facilitating the franchise's exercise." 0 Recent United Nations instruments concur with the academic consensus and emphasize incorporating these rights. The CEDA W demonstrates this integrated approach to human rights by demanding both prevention of direct discrimination and reinvention of environments to eviscerate the more subtle effects of cultural bias. 111 One may say the same for recent instruments specifically relating to disabled persons. During the 1995 World Summit for Social Development, the General Assembly stated that ensuring equal employment for disabled persons requires not only reorganization of the workplace environment, but also direct "measures which enhance education and acquisition of skills," and indirect measures such as hiring and retention incentives for employers. 112 Similarly, the Committee on the CRC requires creating conditions to ensure disabled children's "dignity" and "self-reliance" by eliminating prejudice and promoting "active participation in the community" through meaningful access to education, rehabilitation services, and health care. 113 The Draft Articles likewise challenge the role the constructed environment plays in excluding people with disabilities from participating in civil and political life, and charges societies to make broad-based changes altering entrenched social nonns. 114 By juxtaposing positive and negative rights within the same scheme, the human right to development ultimately avoids the perils associated with their division. In this respect, incorporating the human right to

108. See Cass R. Sunstein. Why Does the American Constitution Lack Social and Hconomic Guarantees? 5 (U. of Chicago, Public Law and Legal Theory Research Paper Series, Working Paper No. 36, 2003) (rights "cannot exist simply with government abstinence"). 109. JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 25 (2d ed. 1998). 110. Jd.; see also Brad R. Roth, The CEDAW as a Collective Approach to Women's Rights, 24 MicH. J. lNT'L L. 187, 203 (2002) ("[A] line between 'direct' and 'indirect' interferences with the range of chosen activity seems not only arbitrary, but potentially obfuscatory, absolving politics of responsibility for the greater part of the real impediments to chosen activity, and characterizing as 'free' a polity in which individuals are as etfectively constrained, perhaps, as those in an 'unfree' polity."). 111. STEINER & ALSTON, supra note 107, at 197 (adding that "[t]he formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies arc essential prerequisites to true equality in political life"). 112. G.A. Res. S-24/2, para. 67, U.N. Doc A/RES/S-24/2 (July 1, 2000). 113. See CRC, supra note 24, at art. 23, para. I. 114. See generally Draft Articles, supra note 42.

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development into the current disability rights paradigm Improves on the social model of disability. Though its ability to integrate first- and second-generation rights is valuable, the human right to development maintains concernmg limitations. This model cannot overcome or provide more satisfactory solutions to three problems common to human rights frameworks. 115 The first problem is effective monitoring of international instruments. As one commentator has archly but accurately put it, the current monitoring system "constitute[s] some of the most powerless, under-funded, formulaic, and politically manipulated institutions of the United Nations." 116 This opprobrium may well prove true for monitoring any disability human rights treaty. Ultimately, in the absence of either dramatic change to the politics of world governance or radical treaty body reform, 117 the efficacy of monitoring any human rights treaty largely depends on extra-legal factors that cannot be built into instruments. These concerns include moral persuasion, political pressure, and the willingness and ability of nongovernmental organizations (NGOs) and grassroots movements to raise social awareness. 118 The second problem the human right to development shares with other human rights treaties is that it fails to provide adequate guidance on its substance and boundaries. In some measure, this is a practically driven, semi-intentional design flaw. As aspirational statements drafted to garner widespread support, human rights conventions are often necessarily

115. Uvin identities debates over ··western-centrism" as a fourth, insurmountable concern. UvTN, supra note 106, at 31. However, some commentators claim that central themes of human rights theory are common to all cultures and faiths, even if expressed in different ways. See, e.g., HANS Kc:NG, A GLOBAL ETHIC FOR GLOBAL POLITICS AND ECONOMICS (1998); ABDULLAH! AHMED AN-NA'IM, HUMAN RIGHTS IN CROSS·CCLTURAL PERSPECTIVES: A QUEST FOR CONSENSUS ( 1992). 116. UviN, supra note 106, at 140. 117. The eftlcacy of the United Nations treaty system is a subject that far exceeds this Article. Briefly, the most recent attempt at overhauling the system was given impetus by the SecretaryGeneral's second reform report of 2002, Strengthening of the United Nations: An Agenda for Further Change, U.N. Doc. AJ57/387 (Sept. 9, 2002), which calls for more coordination among monitoring bodies, greater standardization of reporting requirements, and increased monitoring at the national level. 118. See Michael J. Perry, Protecting !Tuman Rights in a Democracy: What Role for the Courts?, 38 WAKE FoREST L. REv. 635,641 (2003) (distinguishing human rights as moral, rather than legal, rights). Some exogenous factors are described in Goodman & Jinks, How to Influence States, supra note 13. Tom Ginsburg & Richard 11. McAdan1s, Adjudicating in Anarchy: An Expressive Theory of international Dispute Resolution, 45 WM. & MARY L. REv. 1229, 1303-29 (2003), usc game theory to demonstrate the efficacy of international judicial decisions in the absence of sanctions, and provides empirical data support from the International Court of Justice's docket. In very stark contrast, JACK LANDMAN GOLDSMITH & ERIC. A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005), proffers a realpolitik explanation for international adjudication based on rational actor theory that is largely immune from external influence.

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expressed at a high degree of abstraction. 119 Consequently, these instruments' stated goals often fall short of their objectives, due in part to a lack of substantive content. Ambiguous-and sometimes even unambiguous-treaty terminology can mean very different things depending on a State's laws, norms, and culture. 120 The third problem beleaguering the human right to development concerns prioritization of resources. Human rights instruments often contain language limiting application in relation to the financial capabilities of State parties. 121 In accordance with these textual limitations, States short of funds are more likely to implement rights that are either easier to achieve or are perceived as having greater utility or political cachet. Conversely, States are less likely to promote rights where realization is thought either more challenging, less encompassing, or out of political favor. 122 While only broad institutional solutions can adequately amend monitoring deficiencies, Martha Nussbaum's capabilities approach deals with the concerns about practical content and moral priority of human rights, and provides a productive space for understanding their implementation. B.

The Capabilities Approach

Philosopher Martha Nussbaum advocates providing individuals with the means to achieve full human potential, and enumerates a list of "universal" capabilities that describe such flourishing. 123 Her scheme 119. See generally Karl E. Klare, Legal Theory and Democratic Reconstruction: Reflections on 1989,25 U. BRIT. COLUM. L. REV. 69,98 (1991). 120. See Jerome J. Shestack, The Philosophical Foundations of Human Rights, in HeMAN RIGHTS: CONCEPTS AND STANDARDS 31, 33 (Janusz Symonides ed., 2000). 121. See, e.g., Universal Declaration, supra note 14, at art. 22 (limiting responsibility "in accordance with the organization and resources of each State"); ICESCR, supra note 9, at art. 2, para. I (States must undertake steps "to the maximum of its available resources"); CRC, supra note 24, at art. 4 ("States parties shall undertal(e such measures to the maximum extent of their available resources"). Thus, the caution expressed by the Independent Expert that allocation concerns should not be "used as a pretext for avoiding action." U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Working Group on the Right to Dev., Study on the Current State of Progress in the Jmplementation of the Rights to Development, at para. 29, U.N. Doc. E/CN.4/1999/WG.l8/2 (July 27, 1999) (prepared by Arjun K. Sengupta). 122. See David Copp, Equality, Justice, and the Basic Needs, in NECESSARY Goons: OuR RESPONSIBILITIES TO MEET OTHERS' NEEDS 113, 113 (Gillian l3rock ed., 1998) (noting that neither egalitarian nor liberal theories regarding distribution of social goods adequately address issues of prioritization). 123. As part of her continuing research agenda, Nussbaum has applied the capabilities approach to women in a number of contexts. To date, the fullest enunciation of her theory, and the one I reference most for the sake of convenience, is MARTHA C. NusSBAUM, WOMEN AND HuMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000) [hereinafter NussBAUM, CAPABILITIES APPROACHl.

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provides an elegant normative theory addressing human rights aspirations and content. As currently comprised, however, Nussbaum's capabilities approach excludes certain intellectually disabled individuals and treats others as unequal participants by measuring abilities downward from a standard of "species typicality." 124 1.

The Capabilities Approach as it Informs the Human Right to Development

Articulated as a universal feminist political philosophy, Nussbaum's version of the capabilities approach maintains that public political arrangements must provide citizens with the means through which to develop their full human potential as defined by ten central capabilities: life-the faculty to live one's full lifespan; bodily healthhaving good health, including reproductive capability; bodily integrityfreedom of movement and bodily sovereignty; senses, imagination, and thought-cognizing and expressing oneself in a "truly human" way; emotions-loving, grieving and forming associations; practical reasoncritical reflection and conscience; affiliation-self-respect, empathy and consideration for others; other species-being able to co-exist with other species and the biosphere; play-the ability to enjoy recreation; and control over one's political environment-via meaningful participationand material surroundings-through property ownership and employment. 125 While this catalog does not comprise a "complete theory of justice," Nussbaum considers these functions essential because engaging in them is a uniquely human, as opposed to animal or mechanical, mode of existence. Put another way, Nussbaum maintains that her ten central capabilities collectively define "the presence or absence of human life." 126 Since each central capability is a separate component of this theory, States must provide each at a threshold level to ensure basic human functioning, and cannot provide for one component beyond the threshold while denying or limiting another. Nussbaum concedes that some of the central capabilities include what John Rawls called "natural goods," or commodities occurring serendipitously, the existence and extent of which States cannot always balance out (like attractive physical features). 127 Nonetheless, Nussbaum asserts that political principals can fulfill their 124. The notion originates with bioethicist Norman Daniels, who argues that a universal right to health care must be circumscribed to instances of ensuring or revising the "normal species fimctioning"' necessary for individuals to arrive at the "normal opportunity range"" of fimction within their respective societies. See, e.g, NORMAN DANIELS, JUST HEALTH CARE 26-35 (1985); Norman Daniels, HealthCare Needs and Distributive Justice, 10 PHIL. & PuB. AFF. 146, 158-60 (1981). 125. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 78. 126. !d. at 35, 72. 127. RAWLS, supra note 93, at 62.

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obligations by leveling out the social bases underlying the distribution of natural goods. Hence, while governments cannot guarantee the emotional health of all women, they can create an environment conducive to ensuring emotional health through suitable family law, rape prohibition and prosecution, and public safety regulation. 128 Central capabilities are also "combined capabilities," which Nussbaum defines as "internal capabilities combined with suitable external conditions for the exercise of the function." 129 As an example, a physically healthy woman who has the internal capability for sexual gratification may nevertheless lack the combined capability to pursue her sexuality because of repressive social constructs, whether religious, moral, or related to reproductive health. 130 In such a case, the State has not met its obligations to its citizenry because it has not provided an environment in which the combined capability can be expressed. The capabilities approach avers that all people are individually worthy of regard, autonomy, and self-fulfillment. 131 Accordingly, Nussbaum rejects the welfare metrics commonly applied in development studies, such as per capita GNP and the general utility of wealth maximization. Instead, she avers that personalized welfare accounts are more trenchant than those derived from broad, anonymous proxies. 132 General economic growth "does not by itself improve the situation with regard to literacy and health care," nor does it adequately illuminate the circumstance of any particular individual. 133 Nussbaum requires that each and every person be treated as an end in herself, rather than as the instrument of or agency to the ends of others. The central goal of the capabilities approach is to provide individuals with the means through which to develop themselves, regardless of whether they elect to do so. 134 Through her political theory, Nussbaum seeks to endow people with the agency to choose. 135 Because the functions set forth as central 128. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 82. 129. !d. at 84-85 (emphasis in original). 130. !d. at 85. 131. Ultimately, this tenet is called the "principle of each person as end." Jd. at 56 (emphasis omitted). 132. This reasoning provides an additional argument against aggregate analysis of public good, for an absence of political liberty could not conceivably "be made up for by tremendous economic growth." !d. at 81. 133. !d. at 32-33. 134. ller list, is therefore, "a list of capabilities or opportunities for functioning, rather than of actual functions" because it "protects spaces for people to pursue other functions that they value." NusSBAUM, CAPABILITIES APPROACH, supra note 123, at 74. 135. That people would choose not to achieve their own full potential raises a secondary concern, namely that of preference deformation. This concept posits that circumstances exist in which people's basic preferences (which they would recognize if unimpeded) are negatively influenced by external social forces, such as traditional hierarchies or religious beliefs. Nussbaum's response, which draws on

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capabilities are intrinsically rooted in the human condition, they are arguably universal in nature. She presumes them to be culturally sensitive because as universal values they are not considered to impose external-sometimes labeled foreign-moral imperatives on other nations. 136 Nussbaum's conclusion that central capabilities "have a very close relationship to human rights" 137 is overly modest; the capabilities approach relates the same objectives espoused in the human right to development. Moreover, her capabilities scheme improves the human rights framework by providing content to its otherwise abstract aspirations of protecting autonomy, ensuring dignity, and developing personal capacity. Yet, Nussbaum's capabilities approach falls short as a universal theory because it either excludes or only indirectly includes certain individuals with intellectual disabilities.

2.

The Capabilities Approach as Under-Inclusive of Some Intellectually Disabled Persons

Despite the theory's cogency, disability rights advocates can take issue with the capabilities approach for being under-inclusive on two grounds. 138 First, the approach does not go far enough towards empowering disabled persons with the "right to be in the world." 139 Historically, the disabled have been among the most marginalized individuals, 140 and predicating their social inclusion on notions of societal contribution will not improve this status. Second, Nussbaum's scheme fails to recognize the the work of scholars as diverse as Gary Becker, Richard Posner, Thomas Scanlon, and Amartya Sen, is that her approach makes the possibility of central capabilities (which should be universally appealing) available, but does not force the issue. !d. at 115-22. 136. Nussbaum acknowledges that "even if one defends theory as valuable for practice, it may still be problematic to use concepts that originate in one culture to describe and assess realities in another." ld. at 36. Conversely, she also notes the cultural arrogance of assuming that particular values originate with particular countries, for example, assuming that sex equality is an American construct in the face of counter-cultural examples that include India's passage of a sex-based equal rights amendment in 1951. ld at 39. Of course, not everyone agrees with these propositions. For the views of two scholars who decry, in varying degrees, the cultural invasiveness of human rights norms, see MICHAEL IGNATIEFF. HUMAN RIGHTS AS POLITICS AND IDOLATRY (2001); WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY (1995). 137. NusSBAUM, CAPABILITIES APPROACH, supra note 123, at 97. 138. Although 1 take issue with Nussbaum's position on capablities as far as individuals with intellectual disabilities, I stress my admiration for and agreement with the majority of Nussbaum's work and thank her for a willingness to discuss our different perspectives. 139. tenBroek, supra note 58, at 842. Jacobus tenBroek and Flayed Matson made this assertion in the context of welfare benefits by arguing that meaningfi.Jl social participation means not only caring for those who arc unable to work through the welfare system, but more importantly, assuring that disabled persons arc able engage in society at large. Jacobus tcnBrock & Floyd W. Matson, The Disabled and the Law C!fWe(fare, 54 CALIF. L. REV. 809, 809-10 ( 1966). 140. The point is borne out by reading the ADA's Legislative Findings section documenting adverse conditions encountered by people with disabilities living in the United States, the world's wealthiest nation. See 42 U.S.C § 12101 (2000).

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full dignity of those functioning below her ten central capabilities. Consequently, this constructed minimum excludes certain persons with intellectual disabilities from full participation in society. A key ingredient missing from Nussbaum's model is an adequate concept of "participatory justice," or the ability of disabled persons to have meaningful contact with the population at large. 141 Undergirding this notion is a prevailing normative assumption that in a just society everyone should have the ability to interact with and take part in general culture. 142 Participatory justice parallels the social model's assertion that, but for the existence of artificial barriers, people with disabilities would play an equal part in society. It further asserts that a just society makes participation a moral imperative. Thus, even if a State cannot financially provide for a full range of human rights, it can still acknowledge a moral obligation to impart them. 143 Accordingly, participatory justice underscores that human rights seek the elimination of disability-related barriers to equal social participation. 144 However, by assessing social participation via functionality, Nussbaum's capabilities list limits participatory justice for intellectually disabled persons by not sufficiently ameliorating the social invisibility and exclusion they experience. Instead, her capabilities list erects barriers to social participation similar to the practice of predicating human 141. Nussbaum's model is concerned about participatory justice as evidenced by the inclusion of respect and non-humiliation as two key elements. For instance, Nussbaum asserts that Sescha, Eva Kittay's severely disabled daughter, lives a more socially participatory life at a segregated facility than she did in her parent's home. That may well be true, and so Secha has benefited. However, one can interpret the capabilities approach to permit people with severe intellectual disabilities to live in group homes that (unlike Sescha Kittay's) are also completely segregated tram mainstream society so long as the residents interact with their peers and carers in a respectful and non-humiliating manner. Nussbaum would likely disagree with this wholly exclusionary situation, but it is one that can be interpreted from the way her model is set out. See generally Ann Hubbard. 11w Major Life Activity of Belonging, 39 WAKE FOREST L. REV. 217 (2004); Elizabeth S. Anderson. What is the Point of £quality?, 109 ETHICS 287 (1999); IRIS MARION YOUNG, JL:STICE AND THE POLITICS OF DIFFERENCE (1990). 142. "[J]ndividuals cannot flourish without their joining with other humans in some sort of collective activities." Anita Silvers, People with Disabilities. in THE OxFORD HANDBOOK OF PRACTICAL ETHICS 300,318 (Hugh LaFollette ed., 2003). 143. A State can also consider what practices and capacities it values and then allocate some (small) proportion of its restricted resources towards that end. Currently, Malawi is using this approach. Correspondence from Minister June Ntabaz to Professor Michael Stein (December 21, 2004) (on file with author). A cynical argument can also be made that developing nations eagerly press the United Nations towards second-generation rights in order to obligate more developed nations to financially assist their implementation. 144. This idea animates the Draft Articles. for example, the convention requires States parties to "take effective and appropriate measures to enable persons with disabilities to live and to be fully included as members of the community" and to be present in all aspects of mainstream society. See, e.g., Draft Articles, supra note 42, at art. 19 ("States parties shall take etl'ective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.").

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development on economic viability. Conditioning human development on economic viability rather than inherent dignity is a deeply troubling notion, and one that Nussbaum has rigorously and justifiably criticized. 145 The application to persons with disabilities is patiicularly disconcerting because historically, mainstream society rationalized disabled persons' exclusion on the assumptions that they were more expensive and contributed less to society than non-disabled. 146 A stark statement of this perspective is that of neo-Hobbesian philosopher David Gauthier. He utilizes this assertion to justifY ministering to the disabled in a lesser manner than to the elderly, proclaiming that while the aged "have paid for their benefits by earlier productive activity," one may speak only "euphemistically of enabling [the disabled] to live productive lives, when the services required exceed any possible products." 147 A more nuanced treatment of this theme is found in the context of the ADA, where empirically unsubstantiated pleas for efficiency supply an economically rational motivation for employers to withhold accommodations from disabled workers. 148 Such economic justification has led to regimes that systematically bar disabled people from fulfilling their agency as citizens. 149 The many presumably wellintentioned yet paternalistic welfare systems that provide subsistence to

145. See, e.g., Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 PoL. THEORY 229 ( 1992) (dismissing the notion that macroeconomics can accurately reflect the quality of life within a country because the "measure does not even concern itself with the distribution of resources and thus can give good marks to a country with enormous inequalities"). 146. Nearly all Disability Studies commentators accord some influence (whether resulting in overt or unconscious differential treatment) to the phenomenon of ''existential anxiety." The term originates with political scientist Harlan Hahn, who asserted that repugnance to disabled bodily difference, combined with fear of also attaining such variation in the future, results in a sociological desire to segregate people with disabilities from the mainstream. See, e.g., Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. Soc. IssuEs 39, 43-44 (1988); Harlan Hahn, Towards a Politics of Disability: D~finitions, Disciplines, and Policies, 22 Soc. SCI. J. 87 (1985). 147. DAVID GAUTHIER, MORALS BY AGREEMENT 18 n.30 (1986). 148. The most thoughtful enunciation of this position is Mark Kelman, who distinguishes between the societal norms that exist against "simple discrimination" and those norms which mandate the provision of "accommodation." See Mark Kelman, .Market Discrimination and Groups, 53 STAN. L. REV. 833 (2001); MARK KELMAN, STRATEGY OR PRINCIPLE?: THE CHOICE BETWEEN REGULATION AND TAXATION (1999); see also Bd. of Trustees v. Garrett, 531 U.S. 356, 372 (2001) (practices that unquestionably discriminate against disabled employees for economic reasons are constitutional because "it would be entirely rational" for state employers "to conserve scarce financial resources by hiring employees who arc able to usc existing facilities" rather than accede to ADA requests). 149. This is the thrust of the arguments made by historian Deborah Stone in arguing that "ftlhe very act of detining a disability category determines what is expected of the nondisabled-what injuries, diseases, incapacities, and problems they will be expected to tolerate in their normal working lives." DEBORAH A. STONE, THE DISABLED STATE 4 (1984).

202,

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people with disabilities in lieu of workplace participation are emblematic ofthis problem_'5° Second, by setting minimal standards, Nussbaum's list of central capabilities fails to acknowledge the full humanity and equality of individuals functioning below her idealized norm, especially those with intellectual disabilities. Initially, Nussbaum wrote that society ought to value individuals with intellectual disabilities on social justice grounds unrelated to a capabilities approach. 151 She pointed out the parallels between caring for the disabled and caring for the young or elderly, and noted women's unequal role as caregivers in those contexts. 152 Correspondingly, she maintained that in contrast to the purely reciprocal position embodied by social contract theory, social justice requires enhancing women's capabilities so they can provide care to persons with disabilities and others in need. 153 But Nussbaum left unaddressed the explicit question of whether the capabilities model is applicable to those with intellectual disabilities. On the one hand, inclusion of intellectually disabled persons seemed implicit. The capabilities approach emphasizes human dignity and values individuals as an end. On the other hand, inclusion of intellectually disabled persons seemed implausible. Persons with reduced cognitive ability to reason or perform other capabilities are not embraced by criteria viewing these processes as indicative of being "truly human." 154 In her latest book, Nussbaum attempts to resolve the problem of including intellectually disabled persons in her capabilities approach. In doing so she strikes a curious and undesirable compromise by excluding some persons with intellectual disabilities from her framework and including others only indirectly. 155 Because the capabilities list is "so 150. Theresia Degener states the case blnntly: "Persons with disabilities are regarded as being incapable of living as antonomous individuals." lheresia Degener, Disability as a Subject of International Human Rights Law and Comparative Discrimination Law, in DIFFERENT BUT !:'QUAL, supra note 11, at 151, 154. See also tenBroek & Matson, supra note 141, at 809-10 ("Throughout history the physically handicapped have been regarded as incompetent to aid themselves and therefore permanently dependent upon the charity of others .... "). 151. Martha C. Nussbaum, Capabilities and Disabilities: Justice for 1'vfentally Disabled Citizens, 30 PHILOSOPHICAL TOPICS 133 (2002). 152. NUSSBAUM, CAPABILITIES APPROACH, supra note 123. For an extensive treatment of this phenomenon, see JoAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WoRK CoNFLICT AND WHAT TO Do ABOUT IT (2000). 153. Some social science research supports the notion that caregivers ought to be given priority when it comes to redistribution of resources. See, e.g., Avery Russell, Applied Ethics: A Strategy for Fostering Professional Responsibility, 28 CARNEGIE Q. I, 5 (1980) (case study indicating that individuals with vulnerable dependents ought to be preferred over others). !54. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 78. !55. MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006) [hereinafter NUSSBALM, FRONTIERS OF JUSTICE].

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normatively fundamental," she explains, only those individuals who come close to attaining the enumerated functions live a "fully human life" that is "wm1hy of human dignity." 156 Those who are unable to reach these bottom lines, including some proportion of the intellectually disabled, are in Nussbaum's view "extremely unfortunate" and exist at a level "beneath which a decently dignified life for citizens is not available." 157 Thus, although a just society generally mandates that people with intellectual disabilities receive capabilities resources, 158 some will not; for some others, society must channel funds "through a suitable arrangement of guardianship." 159 With these assertions Nussbaum subtly alters her previous capabilities approach, requiring a minimal level of function as a prerequisite to full participation. Because certain intellectually disabled persons are without the ability to achieve each of Nussbaum's bottom lines, even dignity and justice cannot justify the direct allocation of resources for them to flourish. Thus, while Nussbaum's capabilities framework can apply to povertyindeed, it derives from Amartya Sen's position on poverty alleviation-it cannot apply to certain instances of intellectual disability. This is ironic for three reasons. First, there is a strong factual and causal interrelationship between poverty and disability. Second, while Nussbaum's capabilities approach adheres to established norms of functionality, Sen's original capabilities approach does not require a threshold to guide or justify allocations to individuals with different needs. 160 Third, and consequently more perplexing, Nussbaum's analysis falls prey to the same error she identifies as plaguing social contract theory, (and especially Rawls) namely, that social goods beneficiaries are required to provide adequate contributions back to society to justify receiving equal distribution. 161 156. ld. at 181. 157. ld.atl92,179. 158. ld. at98-100. 159. ld. at 193; see also id. at 195-211 (providing domestic and international examples of guardianship that "maximize autonomy"). 160. Distinguishing distribution of goods from the capability to use them, Sen rejects the use of a resources or primary goods list as the sole basis of comparison. AMARTYA SEN, INEQUALITY REEXAMINED 31,38 (1992). 161. An explanatory note is warranted. Throughout her scholarship, and especially in FRONTIERS OF JusTICE, Nussbaum takes great pains to rebut the position maintained by John Rawls and other philosophers subscribing to social contract theory. Those commentators maintain that to justifY the distribution of primary goods, recipients must adequately contribute to society. In other words, the prevailing philosophical belief she strongly rebuts is that resource distribution should be tied to an individual's capacity to contribute to others. It is therefore odd that the idea of contribution has crept into Nussbaum's capabilities approach. Yet by setting species typicality as the level of capability that is the threshold for cutting off resource distribution, Nussbaum applies this determination both as a descriptive and a normative qualitication, and in so doing FRONTIERS OF JusTICE may be read as letting this idea back in.

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Ensuring the dignity of disabled people requires an opposite approach.

It entails recognizing them for their intrinsic value as people and not as a

means towards other ends. This dignitary perspective compels societies to acknowledge that persons with disabilities are valuable because of their inherent human worth rather than their net marginal product. Such an integrated human rights approach asks about the qualities of an individual and how developing her talents can benefit both her and society. By amending Nussbaum's scheme to treat these problems of under-inclusion, it is possible to create a space within which to more fully understand the content of human rights. The next Section discusses how the disability human rights paradigm serves this goal. C.

The Disability Human Rights Paradigm

Combining the best elements of the social model of disability, the human right to development, and Nussbaum's capabilities approach, the disability human rights paradigm provides a comprehensive framework for ensuring the development of individual talent. Like the social model of disability, the disability human rights framework stresses society's role in constructing disability and its responsibility to rectify disability-based exclusion. Like the human right to development, it urges the interrelationship of first- and second-generation rights. And like the capabilities approach, it states a moral imperative for societies to provide resources for developing human potential. Its core modifications include a focus on the cultivation of individual talents rather than Nussbaum's minimum "universal" levels of functioning, and an emphasis on intrinsic

This is because Nussbaum's use of species typicality is both factual and uormative. As applied, it is not only the level of capability that humans typically enjoy, but also the threshold level demanded for a life of human dignity. But why should the level of capability typical of the species also be the level needed for achieving or preserving a dignified life? If this equation is intuitive. it probably is because we associate species typical levels of capability as being valuable because they enable us to care for ourselves and to be perceived as contributing to others. By contrast, lower than typical species functioning is undignified and not truly human because those individuals are a burden to society. Nussbaum fran1es her arguments in terms of choice, and values species typical levels of capability as an important justification for allocating resources to bring everyone up to these levels. Her capability approach is set forth in terms of agency, and Nussbaum believes that people need not exercise their capabilities. In fact, however, social pressure to exercise capabilities and their associated functioning is a familiar phenomenon. Consider, for example, the debate over cochlear implants. Once the technological capability exists to enable deaf people to access aural communication, social pressure is brought to bear on deaf individuals to use this technology rather than rely on sign-language interpreters precisely because the species typical mode of conununicating malccs them better able to contribute without being burdensome to others. I thank Anita Silvers for pointing out the difticulties (possibly insurmountable) of invoking species typicality as a standard without also inviting the stigmatization and exclusion of those who cannot be brought up to the standard.

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human worth rather than contribution as the moral foundation for state resource allocation. The disability human rights framework focuses on allowing individuals to achieve their specific talents, rather than focusing on a lack of overall capabilities as measured against a functional baseline. Talents are more specific to individuals than capabilities, and by definition are not universally shared. Utilizing a disability framework allows society to appreciate potential from the bottom up rather than from the top down through developing people's talents to ensure their flourishing. A disability human rights paradigm maintains that developing one's talents is at the core of being human, and one must view talent as its own end rather than a means to another end-such as achieving species-typical levels of functioning for certain capabilities. The development of talent is a moral imperative that all societies owe to each of their citizens, even if citizens' relative talents are unequal. Thus, the disability human rights paradigm's view of human life is not only about individual flourishing, but also about dignity, autonomy, and individuality, and so necessitates a greater view of all persons contributing to and participating in society. Moreover, the capabilities approach bars distribution of resources that do not increase agency to baseline levels in all ten categories. By contrast, the disability paradigm focuses on the development of individual talent and permits resource distribution to individuals whose agency can be increased in any category. In doing so, the disability framework avoids the ali-or-nothing requirement of Nussbaum's capabilities approach, and permits greater flexibility when States prioritize their resource allocation. 162 Considering some of Nussbaum's examples illustrating how the capabilities approach applies to intellectually disabled persons helps illustrate the inclusive difference between a disability human rights paradigm and her framework. While arguing on social justice grounds for the care of people with intellectual disabilities, Nussbaum describes the lives of three intellectually disabled children. Philosopher Eva Feder Kittay's daughter Sesha has cerebral palsy and is severely intellectually disabled. Public intellectual Michael Berube's son Jamie has Down syndrome. 163 Nussbaum's nephew, Arthur, has Asperger and Tourette 162. To illustrate: Nussbaum"s capabilities approach does not provide resource distribution to child prodigies or savants to enable either group to exceed a species typical norm by developing their special talents. This is because resources to these individuals (assuming they were otherwise capable of attaining the ten capabilities) would stop being distributed at the point that they achieved an average human functioning level. By contrast a disability human rights approach would provide resources for the members of both groups who are impaired in some respects but gifted in others to exceed species typical levels of the capabilities they can achieve, regardless of whether they could attain species typicality in all ten capabilities. 163. NUSSBACM, FRONTIERS OF JUSTICE, supra note 155, at 133-36.

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syndromes. 164 Each has a distinct personality and needs. Sesha loves pretty dresses, dancing to music in her wheelchair, and returning her parents' hugs. 165 Jamie is a fan ofB.B. King, Bob Marley, and the Beatles, and has a clever wit. 166 Arthur deeply understands the theory of relativity and other scientific quandaries, and is politically savvy. 167 According to Nussbaum's central capabilities metric, these children may not become sufficiently economically productive to repay society for the resources they use. 16 H Sesha and Jamie are unlikely to achieve practical reasoning capabilities. 169 Arthur has "few social skills" and "seems unable to learn them." 170 Yet each child is endowed with a minimum level of at least two of the ten central capabilities: emotions and play. 171 And each has talents that can be developed and encouraged. Sesha expresses emotions and affinity. 172 Jamie and Arthur are likely to be employed and exercise a range of citizenship abi lities. 173 However, because Sesha (in contrast to Jamie and Arthur) will not achieve central capabilities even with greater resource distribution, and because she needs the entire range of capabilities to live a "fully human life" that is "worthy of human dignity," two possibilities arise according to Nussbaum: "either we say that Sesha has a different form of life altogether, or we say that she will never be able to have a flourishing human life, despite our best efforts." 174 Since Sesha is not vegetative and displays human qualities of affection and affinity, Nussbaum concludes that Sesha is not a different form of life. With a "flourishing human life" also out of the question, Nussbaum concludes that a just society would, if scientifically possible, have genetically removed Sesha's disabilities. 175 Accordingly, Sesha is excluded from Nussbaum's capabilities approach because she is deemed incapable of reaching the required functional levels. Not surprisingly, Eva Kittay (as Sesha's mother) argues that persons with intellectual disabilities ought to be respected for their intrinsic value

164. !d. at 97. 165. eVA FEDER KITTAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, AND DEPENDENCY 166, 172, 154-55 ( 1999); NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96, 134. 166. MICHAEL BERUBE, LIFE AS WE KNOW IT: A FATHER, A FAMILY, AND AN EXCEPTIONAL CHILD 147, 155 (1996); NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 97, 133. 167. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96-98. Distressed over the modality of President Bush's 2000 election, Arthur insisted on referring to him as the "Resident." !d. at 170. 168. !d. at 128. 169. Jd. at 94-96. 170. Jd. at 96. 171. Jd. at 96-98, 134. 172. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96-98, 134. 173. !d. at 98-99, 128. 174. !d. at 181, 187. 175. Jd. at 192-93.

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as human beings. 176 To conclude, as Nussbaum does, that "Sesha's life is .. . unfortunate, in a way that the life of a contented chimpanzee is not unfortunate," because her capabilities are tragically out of step with those of most members of her species community, is itself out of step with the notion that the flourishing of each individual is itself a moral imperative. 177 The disability human rights paradigm adopts Kittay's view on this point. 178 The framework seeks to encourage the talents of all children because their human dignity is equal to that of children without intellectual disabilities-not because they are able to rise to an expected functional level. 179 In taking this stance, the disability human rights framework likewise rejects Nussbaum's position that Sesha, and people like her, cannot live a "fully human life" or that those lives cannot be "decently dignified" or "worthy of human dignity." 180 Returning to Nussbaum's other examples, her capabilities approach would distribute resources to develop Jamie and Arthur's potential. She sees the expense as justified, even if the resources required by each child are much greater than those required by others, because everyone deserves to be brought as close as possible to the standard level of functioning shared by the majority of society. Thus, Nussbaum's capabilities approach includes persons with intellectual disabilities who (unlike Sesha) are able 176. Killay stresses, in the communitarian tradition, the nature of our interconnectedness with one another and the value that connection creates regardless of the range of our capabilities. This is because, in her view, severely disabled persons increase their friends' and families' agency for caring and moral connection. KiTTAY, supra note 165. As stated by one feminist scholar, "a relational conception of the self suggests that we come to !mow ourselves and others only in a network of interactive relationships and that this shapes and is necessary tor exercising selt~determining capabilities." CHRISTINE KoGGEL, PERSPECTIVES oN EQUALITY: CoNSTRUCTING A RELATIONAL APPROACH 127-28 (1998). Put another way, we all depend on one another, and develop in relation to each other. See Je1mifer Nedelsky, Reconceiving Autonomy: Sources, l'lwughts and Possibilities, 1 YALE J. L. & FEM. 7. 12 (1989) ('"[R]elatedness is not, as our [liberal] tradition teaches, the antithesis of autonomy, but a literal precondition of autonomy, and interdependence a constant component of autonomy."). 177. NUSSBACM, fRONTIERS OF JUSTICE, supra note 155, at 192. 178. As Belden Fields noted, "[h]uman potentialities are developed within a web of cultural, economic, and social relationships that are both facilitating and constraining." A. BELDEN FIELDS, RETHINKING HUMAN RIGHTS FOR THE NEW MILLENNIUM 76-77 (2003). for ways that disability theory can learn from both feminist and communitarian theory, see Carlos A. Ball, Looking for Theory in all the Right Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 OHIO ST. L. J. 105 (2005). 179. In this way, the gap in Nussbaum's capabilities theory dovetails with Norman Daniels's perception of disability, namely, that those individuals with disabilities for whom redistribution of health care resources would fail to help achieve a normal range of opportunity ought not to receive that social wherewithal. See, e.g. Norman Daniels, Justice and Health Care, in HEALTH CARE ETHICS 290 (Donald VanDeVeer & Tom Regan eds., 1987) (maintaining that society ought to redistribute resources in the form of health care to those disabled people whose receipt would enable their function). 180. One must also wonder who would care for Sesha under Nussbaum's capabilities approach if Eva Kittay was not able to provide support.

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to achieve baseline functions. However, these individuals are included in the capabilities scheme only by proxy through their respective guardians, and do not directly receive resources. 181 Consequently, the capabilities approach denies their individual autonomy. In contrast to this surrogacy arrangement, the disability human rights paradigm emphasizes the equal dignity of all persons, and acknowledges their autonomy in directing their own development. Accordingly, some individuals may require the provision of guardians or others to facilitate effective use of state resources towards enabling their talents, but the initial right to those resources is not contingent on intervening proxies. The disability framework, therefore, continues to focus on personal dignity as a key element in human rights discourse, whereas Nussbaum's approach continues to use functional ability as a metric to justify distribution. That is, the disability perspective closely echoes classic human rights theory in asserting that full equality is an intrinsic good to which everyone is entitled. 182 In addition to bringing the existing goals of human rights discourse into view, the disability human rights paradigm can also refocus these aspirations through an emphasis on individual need. The next Part explores the potential of extending a disability paradigm to other human rights frameworks, and discusses the subsequent implications. IV EXTENDING THE DISABILITY HUMAN RIGHTS PARADIGM

The disability human rights paradigm can be extended retrospectively to groups already protected under United Nations instruments, as well as prospectively to people not currently protected. Considering these possibilities causes us to rethink the human rights agenda in different ways and toward different ends.

A.

Retrospectively

Recent identity-specific human rights instruments integrate first- and second-generation rights as a means of protecting targeted populations. 183 In practice, however, the holistic approach of the human right to 181. NUSSBACM, FRONTIERS OF JUSTICE, supra note 155, at 128-34. 182. for a general jurisprudential argument along much the same line, see LARRY S. TEMKIN, INEQUALITY (1993). 183. The TCERD targets racial discrimination that has "the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." ICERD, supra note 22, at part 1, art. 1. The CRC, likewise combining first- and second-generation rights, recognizes "that every child has the inherent right to life" and charges parties to "ensure to the maximum extent possible the survival and development of the child." CRC, supra note 24, at art. 6, paras. 1-2.

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development has not been effectively enforced, 184 and has been subjected to criticism precisely because of its steadfast linkage of first- and secondgeneration rights. 185 The disability rights framework provides us with a strong reminder of how important it is to transcend this divide rather than ask what type of right has precedence for human rights. This is in large part because the attitudes motivating disability-based exclusion frequently manifest in the creation of a prohibitive environment. Ameliorating such barriers underscores the notion that ensuring equality in any meaningful sense requires not only the assertion of negative rights, but also the reconstruction of our world through positive initiatives if we mean to value and include every individual's participation. For the disability human rights paradigm, neither type of right is more important than the other. The fact that each is integral suggests international frameworks need to utilize and embrace both equally .186 The CEDA W offers a particularly clear example of a failed application of the integrated human rights model. In order to advance the concept of a State's obligation to establish equality between men and women, the treaty calls for parties to eliminate all forms of discrimination against women and "[t]o take all appropriate measures to eliminate discrimination against women by any person, organization or

184. Indeed, many NGOs consider the enforcement of economic, social, and cultural rights as either pragmatically infeasible or beyond their basic mandates. Compare, e.g., ARYEH NEIER, TAKING LIBERTIES: FOUR DECADES IN THE STRUGGLE FOR RIGHTS XXiX-XXX (2003) (President of the Open Society Institute asserts that economic. social, and cultural rights are not legitimate rights), with Kenneth Roth. Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HuM. RTs. Q. 63 (2004) (Executive Director of Human Rights Watch explains that NGOs are most effective, and so concentrate, on using shaming methods against clear first-generation rights violations), with Leonard S. Rubenstein, How international Human

Rights Organizations Can Advance Economic. Social, and Cultural Rights: A Response to Kenneth Roth, 26 HuM. RTs. Q. 845 (2004) (Executive Director of Physicians for Human Rights points out that

NGOs need not choose one generation of right over another. but can seek justice in both instances by collaborating with peer organizations), and Alston, Making Space for Nell' !Iuman Rights, supra note 103 (human rights doyen criticizes Atm1esty International for representing its mandate as enforcing the Universal Declaration of lluman Rights, but in reality only implementing parts of that treaty). 185. Recall the discussions, many centering on China, about how some nations prioritize either CP or ESC at the expense of the other. See, e.g., Charles H. Brower IT, NAFTA 's Investment Chapter: Initial Thoughts About Second-Generation Rights, 36 V AND. J. TRANSNAT'L L. 1533, 153645 (2003) (discussing the fundamental differences between the two forms of rights in practice, and Western nations' reluctance to provide ESC rights ordered in the ICESCR). 186. See HENRY SHUE, BASIC RIGHTS: SuBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (2d cd. 1980). Alternatively, Shue sets forth three State obligations in relation to human rights: the duties to respect, protect, and fultlll human rights. The tirst two may be thought of as requiring a State to retrain from violating an individual's human rights and to protect that person from violations by non-State actors. The third, however, mandates the State to proactively and positively provide the means by which to achieve human rights.

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enterprise." 187 To transform women's role and place in society, the CEDA W further mandates States parties modifY behavior patterns arising from stereotyped notions of either sex as inferior or superior. 188 As a hard law treaty, the CEDA W is an ambitious attempt to rework the social geography by interweaving first- and second-generation rights-attempting to effect deep legal, social, and cultural transformation of women's role in society. 189 Despite the CEDAW's structure, assertions of women's rights under the convention often invoke only first-generation civil and political rights. 190 By this limiting invocation, practitioners have fallen in step with early-and now superseded-feminist scholars who eschewed gender difference by arguing for equal treatment on the basis of sameness, rather than essentializing the significance of difference to understanding women's equality. 191 This tension between absolute notions of sameness and difference in asserting equal treatment parallels the difference of opinion between social model advocates and those seeking to incorporate secondgeneration rights into the disability discourse. Ironically, this type of dichotomous perspective is exactly what the CEDA W attempts to forestall by embracing notions of formal justice (as sameness) and redistributive justice (as difference) thereby attempting to avoid the artificial divide 187. CEDAW, supra note 23, at 194, arts. 1-2. The CEDAW defines discrimination as any action that impairs women's full and equal enjoyment of their human rights. CEDAW, supra note 23, at 194, art. 1. See generally Renee Holt, Women's Rights and International Lmv: The Struggle for Recognition and Enforcement, 1 COLUM. J. GENDER & L. 117 (1991); NATALIE KAUFMAN HEVENER, INTERNATIONAL LAW AND THE STATUS OF WOMEN (1983). 188. CEDAW,supranole23, at 195, art. 5. 189. See, e.g., M. Christina Luera, No More Waiting For Revolution: Japan Should Take Positive Action To Implement the Convention on the Elimination of All Forms of Discrimination Against Women, 13 PAC. RIM L. & PoL'Y J. 611, 615-16 (2004) (discussing the broad and ambitious goals of the CEDA W in Japan). 190. Lisa A. Crooms. Indivisible Rights and Intersectional Identities or, "What do Women's Human Rights Have to do With the Race Convention?", 40 How. L. J. 619, 627 (1997), discusses the general conception of first-generation rights as privileged over second-generation rights, and applies that concept to women's rights. This in turn has affected the practice of NGOs and other entities monitoring human rights violations. See generally KATARINA TOMASEVSKI, DEVELOPMENT AID AND HuMAN RIGHTS REVISITED 113-14 (1993) (explaining that human rights are thought to prevent states from abusing people. while development is typically aimed at increasing economic growth and satisfying basic needs). For a comparative analysis of how women's civil and political rights are asserted, see Jessica Neuwirth, inequality Before the Law: Holding States Accountable for Sex Discriminatory Laws Under the Convention on the Elimination of All Farms of Discrimination Against Women and Through the Beijing Pla(formfor Action, 18 HARV. HuM. RTS. J. 19 (2005). However, these complaints have not targeted the broader remedies that could be invoked under the CEDA W provision requiring States to "modifY the social and cultural patterns of conduct" that perpetuate stereotypical gender roles. Laura Grenfell, The Participation of Afghan Women in the Reconstruction Process, 12 HuM. RTS. BRIEF 22, 22-23 (2004). 191. The point is made by Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights. 19 HARV. WOMEN'S. L. J. 89 (1996); ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT (1988).

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between positive and negative rights. 192 This dynamic also goes against contemporary feminist theory advocating transcendence of the samenessdifference debate. As one commentator astutely noted, "the CEDA W framework, which embraces both universalism and particularism to some degree, is probably the best and perhaps the only available legal strategy for escaping [the difficulties of] rights-based essentialism." 193 Similarly, under a disability human rights paradigm the source and type of equality-whether equal treatment or equal opportunity-is irrelevant. However, because attitudes fomenting disability-related exclusion manifest to a greater degree in critiquing an environment's social construction, the framework provides an exemplar for why and how firstand second-generation rights applicable to women should be viewed and implemented holistically. In recognizing the interrelationship of first- and second-generation rights, the disability human rights paradigm is not different in kind from the human rights vision of other treaties, and in fact should be viewed as kindred to the CEDA W. Accordingly, adding disability protections to the existing human rights canon simply acknowledges the extent to which "neutral" attitudes manifest in unnecessary and avoidable exclusion, and makes clear the deep necessity of retrenching institutions and the social situations they create and maintain. In so doing, the disability human rights framework reaffirms a woman's fundamental right against discrimination, and underscores a woman's right to a supportive landscape. However, the disability dynamic also has the potential for responding to individual need over group-based identity. This alternative, more ambitious implication would create a dramatically different, although not mutually exclusive, perspective on reconfiguring human rights.

B.

Prospectively

In theory, global provisions contained in hard laws such as the ICCPR and the ICESCR protect all humans equally. 194 In reality, individuals not currently specified under hard law treaties-for example, sexual minorities and the poor-must fall under an additional protected identity criterion to 192. See generally Nicola Lacey, Feminist Legal Theory and the Rights of Women, in GENDER AND HuMAN RIGHTS 13, 51 (Karen Knop ed., 2004); Hilary Charlesworth, Alienating Oscar? Feminist Analysis of International Law, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW I (Dorinda G. Dallmeyer ed., 1993). 193. LACEY. supra note 191, at 13, 51; Karen Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, in RECONCEIVING REALITY, supra note 192, at 143, 155; see also HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS (2000). 194. See discussion supra Part I.A.; see also MICHAEL FREEMAN, HUMAN RIGHTS: AN INTERDISCIPLINARY APPROACH 60 (2002) (defining civil rights as "deriv[ing] trom the laws or customs of particular societies," whereas human rights are those one has simply by virtue of being human).

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receive human rights recognition. The disability human rights paradigm can solve this problem and bring both sexual minorities and the poor within human rights protection. Protecting the rights of sexual minorities advances the disability human rights framework's goal of eliminating the notion that atypical people are of lesser worth. Granting poor people the opportunity to develop human agency advances the paradigm's aspiration of responding to individual need. Extending rights protection to these two groups-and the individuals within--causes us to rethink the objectives animating a human rights agenda. 195 One way to view human rights is to consider them existing along a continuum that progressively extends towards marginalized groups. New instruments are thus vehicles through which to remove mistaken justifications for socially constructed exclusion. 196 Prior to addressing the needs of disabled persons, the global community recognized the rights of other excluded groups through enactment of identity-specific instruments that went beyond the universal coverage of the ICCPR and the ICESCR. Consequently, prejudicial social conventions directed at members of these groups are now considered morally unacceptable and are legally prohibited. 197 Disability-based human rights-reflected in both existing soft laws and the evolving Draft Articles-are the most recent instruments empowering a socially excluded group with human rights. 198

195. Jerry Mashaw has suggested that, when discussing disability-related policy choices, foundational issues should be eschewed in favor of pragmatic and prudential considerations. See generally Jerry L. Mashaw, Against First Principles, 31 SAN DIEGO L. REv. 211, 221 ( 1994). I agree that policy discourse ought to include concrete proposa.ls, and so profrer a vision of what a disability human rights paradigm would look like, but strongly disagree that "just" theorizing is inadequate. See also Martha C. Nussbaum, Why Practice Needs Lthical Theory: Particularism. Principle. and Bad Behavior, in THE PATH OF THE LAW AND ITS INFLUENCE: THE LEGACY OF OLIVER WENDELL HoLMES, JR. 50 (Steven J. Burton ed., 2000) (asserting that philosophical theorizing is a necessary ingredient in analyzing large systemic issues). 196. For parallels of this perspective within the race and sex civil rights categories, see Mary F. Radford, Sex Stereotyping and the Promotion of Women to Positions of Power. 41 HASTINGS L. J. 471, 489-90 ( 1990) (noting that "[s ]ex stereotyping in the workplace is embedded in a complicated matrix of interlocking beliefs" based on socially constructed definitions of "male" and "female"); see also Kimberle Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Lmt•, 101 HARV. L. REV. 1331 (1988) (noting the pervasive and racist nature of seemingly neutral legal norms). 197. Adherents of behavioral economic scholarship would argue that a law's very existence, in turn. shapes individua.l preferences by changing their taste for specific outcomes beyond the traditional effect of sanctions through altering behavior. This can be either because the new law carries a symbolic social meaning, or because it affects the way individuals mediate that symbolic social meaning. For a survey of the literature and an initial application of the theory to disability law, see Michael Ashley Stein, Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA, 90 U. VA. L. REv. 1151, 1181 (2004) 198. Interestingly, while disability is protected in the United States at the fedcra.l level, sexual orientation is not. The opposite was true in Europe until Article Thirteen of the European Convention

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The theories underlying the disability human rights paradigm can be used to extend protections to sexual minorities-most typically gays and lesbians-subjected to pervasive and systemic discrimination in many countries, if not worldwide. 199 At the same time, some commentators acknowledge that sexual minontles should receive negative rights protection, but argue that they are an inappropriate target for secondgeneration rights. This is because, in their view, sexual minorities are not necessarily economically worse off due to social exclusion. 200 This proposition is empirically and normatively flawed. Empirically, it is highly questionable that sexual minorities have not experienced monetary harm through discriminatory experiences. Much like other minority group members, sexual minorities do not invest in and develop their potential if certain career paths or opportunities are deemed unattainable. 201 And sexual minorities are not in a position to challenge exclusion from was amended to include disability. M. i\. Stein, Anti-Discrimination raw and the F:uropean Union, 62 CAM. L. J. 508, 508-09 (2003). 199. See generally WILLIAM N. ESKRIDGE, GAYLAW: CIIALLENGING TilE APARTIICID OP TilE CLOSET (1999). Doing so, however, first requires acknowledging the socially contingent nature of many cultural norms that are otherwise taken for granted as "natural" and "normal." As observed by Robert Gordon: "[T]he power exerted by a legal regime consists [ofl ... its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live." Robert W. Gordon, Critical Legal Histories, 36 SiAN. L. REv. 57, 109 (1984). See also ALAN HYDE, BoDIES OF LAw 231 ( 1997) ("Law veils its own power ... by pretending to find what it in fact makes itself."). These norms include, among others, heterosexuality, opposite sex monogamy, and male-female human reproduction. See generally Janet E. Halley, Sexual Orientation and the Politics of Biology. A Critique of the Arguments from Immutability, 46 STAN. L. REv. 503 (1994). Each of these conditions has a strong counterfactual. Consider homosexuality, same sex unions, and the increasingly prevalent use of scientifically assisted reproduction. As to the former, numerous articles are published in the Journal of Homosexuality: as to the latter, see JANET L. DoLGIN. DEFTNTNG THE FAMILY: LAW, TECHNOLOGY, AND REPRODUCTION TN AN UNEASY AGE (1997). Accepting one version of social ordering over another is a matter of communal choice, not biological or logical necessity. Understanding this elective as an elective paves the way forward for equal treatment of sexual minorities. See generally Janet E. Halley, The Politics ofl'lw Closet: Towards Lqual Protection for Gay. Lesbian. and Bisexual identity, 36 UCLA L. REv. 915 (1989). Admittedly, some people do not feel that sexual minorities are an appropriate group for either civil or human rights protection. This sentiment has been borne out in recent years in the United States, as demonstrated both by the defeat in Congress of a bill which would have prohibited workplace discrimination based on sexual orientation. See Chai R. Feldblum, The Federal Gay Civil Rights Bill. From Bella to ENDA, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CiVIL RIGHTS 149 (John D'[milio et al. eds., 2000) (describing the failure to pass the proposed federal Employment Non-Discrimination Act). This sentiment is also demonstrated by the passage in eleven states during the 2004 election of same-sex marriage ban referenda. See generally Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning.from Brown v. Board of Education and its Aftermath, 14 WM. & MARY BILL OF RTS. J. 1493 (2006). 200. This is also a dilemma that Nussbaum argues causes difficulty to Rawls's theory because his allocation of primary goods is based on insufficiently nuanced distribution principles. See Nussbaum, FRONTIERS OF JUSTICE, supra note 155, at 178-84. 201. See generally M.V. LEE BADGETT, MONEY, MYTHS, AND CHA'IGE: THE ECONOMIC LNES OF LESBIANS AND GAY MEN (2001) (empirically debunking commonly held myths of homosexual affluence).

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particular prospects if they do not first consider those options viable. 202 However, even if sexual minorities who are dissuaded from thriving in a particular manner end up economically well off, they still suffer violations to individual dignity and personal flourishing. This is particularly true if they pursue social advancement by repressing elements of their identities. 203 Extending disability human rights to sexual minorities remedies this problem by addressing historical and group-based subordination. 204 The disability-based framework also promises an alternative, ambitious reconfiguring of human rights by moving from group-based protection to individualized assessment. This shift is dramatically illustrated by expanding rights protection to the poor, an idea advocated by Nobel Prize winner Amartya Sen. 205 Because Sen avoids the language of human rights-his assertions arise from development economics-I attempt to add to his powerful assertions by fi·aming them in terms of rights. Thus the disability human rights paradigm acts as a bridge between group-based rights discourse and Sen's progressive vision that responds to individual need? 06 202. Like other self-fulfilling prophecies. this is a Catch-22: certain workers are disadvantaged in the workplace because they are believed to have lower net productivity values. In turn, those workers invest less in their own human capital because they believe that they will be disadvantaged in the workplace. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991) C[S]tatistical discrimination encourages minorities to underinvest in human capital, which in turn makes statistical discrimination rational."). 203. Kenji Yoshino argues that sexual minorities assimilate in three ditlerent ways: converting, (changing their underlying identity) passing, (retaining their underlying identity but masking it to observers) and covering (retaining and disclosing their underlying identity, while allowing it to be revealed to acute observers). Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002). For sociological accounts of the effect that identity repression has on gay men, see llan H. Meyer, Minority Stress and Mental Health in Gay Men, 3 J. HEALTH & Soc. BEHAV. 38,39-42 (1995). and JAMES D. WOODS & JAY H. LucAs, THE CORPORATE CLOSET: THE PROFESSIONAL LIVES OF GAY MEN IN AMERICA 74-75 (1993). 204. See, e.g., Kenneth L. Karst, Why Equality Matters, 17 GA. L. REv. 245,247-49 (1983); Paul Brest, Foreword: !n Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7·8 (1976). 205. For representative examples of his enunciation, see AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999) [hereinafter SEN, DEVELOPMENT AS FREEDOM]; SEN, DEVELOPMENT AS CAPABILITY ExPANSION, supra note 5, at 94. Briefly stated, Nussbaum's fran1ework arises from Aristotelian principles and is harmonious with much of what Sen argues, but also ditfers in several significant ways. For an elaboration of these differences, see David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, 20 PoL. THEORY 584 (1992); David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, Part 11, in WOMEN, CuLTURE, AND DEVELOPMENT: A STUDY OF HuMAN CAPABILITIES 153 (Martha C. Nussbaum & Jonathan Glover cds., 1995). 206. Although I reframe matters of distributive justice in this Article using "rights talk," one could also use the currency of "welfare," understood objectively rather than subjectively in terms of preference satisfaction. I elect "rights talk" mainly for its strategic advantage. It is easier to enshrine a normative principle in a legal document, like a treaty, while acknowledging that there might not be a

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Poverty arises from and is perpetuated by multidimensional factors requiring systemic responses. 207 Beyond an obvious lack of wealth in the material sense, being poor translates into diminished health, reduced access to education and other basic social goods, marginalized participation in political processes, and an overall diminished ability to develop personal talent. 208 It is highly appropriate for the United Nations Millennium development projects to focus on poverty alleviation, 209 for the annual United Nations Development Reports to recognize poverty as a central metric, 210 and for the World Bank to vow to focus on poverty alleviation in addition to issuing loans to developing nations. 211 These international bodies recognize that long term, effective responses to poverty are inextricably linked to the enhancement of human rights. 212 In developing his thesis treating poverty alleviation as an economic/political right, Sen argued that income deprivation is capability deprivation; it deprives the poor access to essential goods and services. 213 In other words, redistributing wealth provides persons living in impoverished conditions the means to achieve employment, education,

difference in result from utiliLing other currencies. On the "choice of currency issue," see Richard .1. Arneson, Welfare Should be the Currency ofJustice, 30 CANADIAN J. PHIL. 497 (2000). 207. For a perspective by the Chair of the Millennium Development Goals, see JEFFREY D. SACHS, THE END OF POVERTY: ECONOMIC POSSIBILITIES FOR OuR TiME (2005). 208. "Poverty both affects, and is affected by, other human rights violations." Joe W. Pitts Ill, lhe First U.N. Social Forum: History and Analysis, 31 DENV. J. INT'L L. & PoL'Y 297, 298 (2002); see generally David Dunnan, The Dynamics of Poverty and Race in South Africa, 1994-1999, 9 GEO. Pusuc PoL'v REV. 69, 70 (2003) ("Lack of access to health care, education, and employment opportunities also increase a household's likelihood of poverty."). 209. Specifically, the United Nations aims to halve the proportion of people living in poverty or hunger, as defined by earning less than one dollar a day. by 2015. See MILLENNIUM DEVELOPMENT COMPACT, supra note 104. 210. See MILLENNIUM DEVELOPMENT COMPACT, supra note 104; U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT I997, available at http://ww.undp.org. 211. See DEEPA NARAYAN ET AL., VOICES OF THE POOR: CRYING OUT FOR CHANGE 32 (2000) (the World Bank's position "reinforces the case for making the well-being of those who are worse off the touchstone for policy and practice"). 212. See The Chairman-Rapporteur, Report of the Chairman-Rapporteur: The Social Forum, para. 50, delivered to the Economic and Social Council, U.N. Doc. E/CN.4/Sub.2/2002/18 (Aug. 9, 2002) (explaining that the purpose of the U.N. Social Forum was to address the need "to give special voice to new actors, including the poor and the marginalized and their organizations, which have no space within the United Nations system"); Kaushik Basu, On the Goals of Development, in FRONTIERS OF DEVELOPMENT ECONOMICS: THE FUTURE ON PERSPECTIVE 61, 65 (Gerald M. Meier & Joseph E. Stiglitz eds., 200 I) (stating that "in evaluating an economy's state or progress, we must focus primarily on how the poorest people are faring"). 213. These arguments are set forth in a chapter entitled "Poverty as Capability Deprivation." SEN, DEVELOPMENT AS FREEDOM, supra note 205, at 87-110.

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health care, and gender equality. The essence of his argument is that alleviating impoverishment is instrumental rather than intrinsic. 214 Sen then takes the capabilities approach further, arguing that poverty differs from traditional group-based need in two ways. First, the effects of poverty must be appraised and counteracted individually. Second, a greater allocation of resources is needed for indigent people to reach an optimal functional level than for other individuals. 215 While Nussbaum's capabilities approach adheres to established norms of functionality, Sen's original capabilities approach does not require a threshold to guide or justify allocations to individuals with different needs. Rather, normative expectations about the most effective application of resources should not constrain the allocation of those resources to the poor. This latter assertion is consistent with the broad social reconstruction Nussbaum is attempting but does not achieve because of a flaw in the scope of her capabilities framework. 216 Approaching poverty as a category for human rights protection would signify a dramatic shift in which individuals are formally endowed with identity-based rights. Established hard law treaties target particular groups in an effort to ameliorate human rights violations experienced by individuals within those categories. Extending human rights protections to the poor is in contrast to this established trend by emphasizing the value of individual identity over that of a group-based characteristic. In protecting individuals regardless of historically targeted group status, this focus removes the necessity of determining who is morally worthy of receiving this benefit, itself a prudentially difficult and possibly unjustifiable distinction. Such a shift also recognizes that opportunity involves a spectrum rather than a bright line of abilities. Refocusing human rights empowerment and resource redistribution on the needs of particular individuals also helps accomplish three positive goals. First, it eliminates prejudice in a different manner than is currently perceived possible. This is because group identity norms by definition equate with negative stereotypes; otherwise, there would not be a need to eliminate civil or human rights violations. Raising individual identity and need over group identity and need can therefore circumvent the 214. Jd. At this point, one could plausibly argue that it is not any inherent limitation of disability, female gender, or particular ethnicity that creates capability deprivation, but rather the correlation of these characteristics with the means of accessing goods and services. 215. ld. 216. John Foster-Bey, Bridging Communities: Making the Link Between Regional Economies and Local Community Development, 8 STAN. L. & PoL'v R. 25,27 (1997) (outlines the culture of poverty thesis by stating: "[P]overty is not merely a function of lack of income, but also results from social disorganization and unproductive behavioral traits that imbue low-income people with a sense of inferiority, conditioning them to accept their status as unavoidable. These beliefs create a set of psychosocial barriers-a culture of poverty-that perpetuate poverty from generation to generation.").

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reinstantiation of negative stereotypes. 217 Second, it focuses on individual, rather than group-based need, and thus can encourage the development of individual capacity. This dynamic is in sync with the human rights emphasis on protecting individual dignity and the capabilities approach's emphasis on each person valued as an end. Moreover, as an empirical matter, overlap is likely to exist between the categories, 218 including the tremendous prevalence of poverty among people with disabilities, 219 women, and ethnic minorities. 220 Third, it requires that human rights be integrated rather than fractured. 221 This is evidenced by its concentration on individual need, which in turn reaches out to group-based need. For example, note the absence of the word "disability" from each of the respective United Nations Millennium projects relating to poverty, health, and HIV status, though each is factually linked to disability. 222 Recalibrating the aim of the human rights discourse as a response to individual need would develop the capacity of all individuals on the basis of their inherent worth and potential. As such, disability-based rights

217. This point is made in the disability context by Anita Silvers. Double Consciousness, Triple Difference: Disability, Race, Gender and the Politics of Recognition, in DISABJLn Y, DIVERS-ABILIJ Y AND LEGAL CHANGE, supra note 78, at 75. 218. For a discussion of the interface between disability and gender at the international level, see Theresia M. Degener, Disabled Women and International Human Rights, in 3 WoMEN AND INTERNATIONAL HUMAN RIGHTS LAW 267 (Kelly D. Askin & Dorian M. Koenig eds., 2001). For a broader discussion of the implications of double discrimination in this context, see the contributions in GENDERING DISABILITY (Bonnie G. Smith & Beth Hutchison eds., 2004); WOMEN AND DISABILITIES: THE DOUBLE HANDICAP (Mary Jo Deegan & Nancy A. Brooks eds., 1985). 219. According to the World Bank, one-fifth of the poorest individuals have a disability. See ANN ELWAN, POVERTY AND DISABILITY: A SURVEY OF THE LTTERATL:RE (The World Bank Socia] Protection Paper No. 9932, 1999). See also tenBroek & Matson, supra note 141, at 809 (claiming that "poverty and disability are historically so intermeshed as to be otlen indistinguishable"). See also James D. Wolfensohn, Poor. Disabled and Shut Out, WASH. PosT, Dec. 3, 2002, at A25 (statement by president of the World Bank that "research shows that disabled people are also more likely than other people to live in grinding poverty"). 220. Women, for example, constitute some 60% of the working poor, as reported by the U.N. Int'l Research & Training Inst. for the Advancement of Women, Women and Poverty: New Challenges, available at http://www. un-instraw.org/en/images/stories/Beijing/womenandpoverty.pdf (last visited Oct. 6, 2006). Using health and education data as alternative indicators of women's poverty levels also clearly indicates women's disadvantage relative to men in places such as South Asia, where "women have only about half as many years of education as men and female enrollment rates at the secondary level are only two-thirds the male rates.·· World Development Report 2000/2001, Attacking Poverty: Opportunity, Empowerment, and Security 4, available at http://siteresources.worldbank.org/ INTPOVERTY/Resources/WDR/overview.pdf (last visited Oct. 6, 2006). 221. This point is demonstrated by the absence of disability as in the essays comprising DYING FOR GROWTH: GLOBAL INEQUALITY AND THE HEALTH OF THE POOR (Jim Yang Kim ct al_ cds., 2000). 222. See sources and citations, supra note I 07 _ By contrast, Christopher McCmddcn correctly argues that one of the most effective, albeit perplexing, methods for effectuating human rights is to mainstream them into all levels of government decision making_ Christopher McCrudden, Mains/reaming Human Rights, in HUMAN RIGHTS TN THE COMMUNITY: RIGHTS AS AGENTS FOR CHANGE 9 (Colin Harvey ed., 2005).

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function as a capabilities-based bridge between established norms and future aspirations attending to individual need and talent development. CONCLUSION

This Article examines the theoretical implications of adding disability protections to the existing canon of human rights, both for individuals with disabilities and for other under-protected groups. It combines the best elements of the social model of disability, the human right to development, and Nussbaum's capabilities approach to proffer a disability human rights paradigm that provides a comprehensive framework for ensuring the development of individual talent. This Article maintains that Nussbaum's capabilities approach provides an especially fertile space within which to understand the content of human rights. Nonetheless, Nussbaum's scheme falls shm1 as a comprehensive framework because it excludes some individuals with intellectual disabilities and does not fully include others. Amending her approach to develop the talents of all individuals-even those Nussbaum considers not "truly human"-creates a disability human rights paradigm that comprehensively recognizes the dignity and worth of every individual. Because disability rights invoke civil and political rights as well as economic, social, and cultural rights, the disability rights framework presents a strong reaffirmation that established human rights protections are similarly indivisible. Both types of rights are essential if hard laws are to be effective. Hence, groups whose rights have historically been divided between generational rights-such as women--could be strengthened by the disability rights paradigm. Applying a disability framework retrospectively to women reaffirms the need for a holistic approach to human rights that can prohibit discrimination and rework social landscapes. Moreover, utilizing a disability-based perspective could also extend human rights to currently unprotected people, including sexual minorities and the poor. Extending a disability human rights paradigm to these groups empowers vulnerable populations in very different ways. Sexual minorities have been excluded from social opportunities due to prejudicial social convention. Their protection thus follows an established and linear progression. The poor, however, do not possess immutable group-based identity characteristics. Poverty alleviation as a human right is a response to individual need and so raises a different set of human rights issues. Each of these possibilities-retrospective and prospective application of the disability rights paradigm to other groups-requires us to reexamine the bases underlying existing notions of human rights protection. Finally, the assertions in this Article are unique. Instead of only advocating disability-specific protection paralleling established human

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rights instruments, the Article also proffers an initial argument for extending disability-based human rights concepts to other groups. In doing so, this Article advocates for a dramatic shift in perspective by centering disability within the analytical framework. Considering the ability of disability-based notions to enrich the rights of already protected groups rather than analyzing the ability of traditionally accepted norms to be applied to the disabled is a dramatic change in rights discourse. Historically, persons with disabilities have been among the most politically marginalized, economically impoverished, and least visible members of society. Many societies have viewed and continue to view this social exclusion as natural, or even a warranted consequence of the inherent inabilities of disabled persons. Adopting a disability human rights model-and then extending it to other groups-repositions disability as a universal and inclusive concept. As human beings, each of us has strengths, weaknesses, abilities, and limitations. A disability human rights framework prioritizes potential over function, and recognizes the value of every individual for his or her own end. It assesses the efficacy of human rights protection in light of exogenous factors that impact each person's development. Doing so embraces disability as a universal human variation, rather than as an aberration.

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[2] Martha Nussbaum's Capabilities Approach and Equality Rights for People with Disabilities: Rethinking the Granovsky Decision Ravi Malhotra*

I. INTRODUCTION The enactment of the Canadian Charter of Rights and Freedoms 1 has reframed the context of debates about equality and what it means for Canadians. The ongoing quest for a sound theoretical basis for the constitutional equality rights guaranteed by section 15 of the Charter could be given an important boost by close attention to Martha Nussbaum's Capabilities Approach, as articulated in her recent book, Frontiers of Justice: Disability, Nationality, Species Membership. In identifying a list of core human entitlements that in her view represent a minimum of what respect for human dignity requires, 2 Nussbaum's book not only offers a particularly rich vision of equality and human flourishing but also sheds real light on specific issues that have arisen in applying section 15 of the Charter, such as the search for appropriate comparator groups. In Part II of this paper, I explore the debates on equality in liberal theory that led to Nussbaum's articulation of her Capabilities Approach. I argue that despite certain weaknesses, her theory provides support for a richer form of equality than Rawls' theory of ''justice as fairness". In Part III, I briefly examine the social model of disablement and its Assistant Professor, Faculty of Law, Common Law Section, University of Ottawa. I wish to express my deepest appreciation to Joe Magnet and Bernie Adell and the anonymous peer reviewer for encouraging me in developing my ideas. I also appreciate the advice of my learned colleague, Graham Mayeda. All remaining errors are my own responsibility. 1 Part I of the Constitution Act, 1982, being Schedule 8 to the Canada Act 1982 (U.K.), 1982, c. II [hereinafter "Charter"]. 2 Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge: Harvard University Press, 2006) [hereinafter "Nussbaum, Frontiers''].

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implications for equality rights. That model focuses on the idea that it is the structural barriers in society, physical and attitudinal, which are primarily responsible for the marginalization of people with disabilities. In Part IV, I apply the social model of disablement to assess the strengths and weaknesses of Nussbaum's Capabilities Approach, and I consider the extent to which that approach can provide guidance on critical jurisprudential questions facing Canadian courts under section 15 of the Charter. In Part V, I look at the Supreme Court of Canada decision in Granovsky v. Canada (Minister of Employment and Immigration), 3 and I suggest how Nussbaum's paradigm might stimulate more expansive readings of the notion of dignity that now plays a critical part in the Court's equality rights analysis. 4 As well, I argue that the Capabilities Approach could guide a reconsideration of the Court's problematic quest for appropriate comparator groups in the course of that analysis. 5 In Part VI, I offer some brief conclusions.

II. EQUALITY THEORY AND ITS DISCONTENTS Martha Nussbaum's Capabilities Approach, as articulated in Frontiers of Justice, is explicitly framed to correct the deficiencies she finds in prominent theories of equality. At the outset, it should be made clear that she sees her analysis not as a repudiation of the theory of 'justice as fairness" that John Rawls defended in his now iconic text, A Theory of Justice, 6 but as a sympathetic supplement to that theory. [2000] S.C.J. No. 29, [2000]1 S.C.R. 703 (S.C. C.) [hereinafter "Granovsky"]. See, e.g., Leslie A. Reaume, "Postcards froin 0 'Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter" in Fay Faraday, Margaret Denike & M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006) 373, at 398 [hereinafter ''Faraday, Denike & Stephenson"]; Peter Hogg, Constitutional Law of Canada (Toronto: Thomson Canada, 2004), s. 52.7(b); David L. Corbett, Karen Spector & Jonathan Strug, "Section 15 Jurisprudence in the Supreme Court of Canada in 2000" (2001) 14 S.C.L.R. (2d) 29; June Ross, "A Flawed Synthesis of the Law" (2000) II :3 Constit. Forum 74. After the completion of this article, the Supreme Court of Canada released its decision in R. v. Kapp, [2008] S.C.J. No. 42, [2008]2 S.C.R. 483 (S.C.C.) in June 2008 where, in a decision on a Charter challenge to an Aboriginal fishing licence, it acknowledged the merit of many of the critiques of the Law test and signalled a return to the pre-Law analysis in Andrews. The implications of this case remain to be seen. 5 Andrea Wright, "Formulaic Comparisons: Stopping the Charter at the Statutory Human Rights Gate" in Faraday, Denike & Stephenson, id., 409 at 409-4I; Daphne Gilbert & Diana Majury, "Critical Comparisons: The Supreme Court of Canada Dooms Section I5" (2006) 24 Windsor Y.B. Access Just. Ill [hereinafter "Gilbert & Majury"]. 6 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) [hereinafter "Rawls, A Theory"]. Indeed, Nussbaum comments, "I hope that it will be seen that my capabilities approach is another member of this family, and thus that my proposal to add it to the

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Influenced by classical theorists such as Kant, Locke and Hume, and in response to the then dominant utilitarian tradition which focused on satisfying overall preferences, 7 Rawls envisioned rational contracting parties who would notionally reach agreement (or a social contract) on the fundamental principles of justice that were to govern society. Rawls devised what he called the Original Position 8 as a heuristic device to explicate his vision. In the Original Position, the parties would be hypothetical rational individuals who understood the basic principles of economic theory and human psychology, but were shielded by a "veil of ignorance" from any knowledge of their own attributes or interests. 9 Consequently, they would not know their own socio-economic characteristics, their race, their gender, or whether they had any disabilities. Nor would they be aware of their own individual conceptions of the good, the details of their specific life plans, or the exact political circumstances and level of economic development of the society in which they lived. 10 Rawls envisaged that because they knew nothing of their own condition, they would choose quite egalitarian social arrangements so that they would not be too miserable if they were in fact at the bottom of the ladder. While they would want to maximize their own share of the social primary goods produced by society, they would have no incentive to deliberately reduce the share of others, or to act in a vain or envious manner. 11 Rawls posited that, acting under those constraints, the parties in the Original Position would arrive at two principles of justice. 12 He intentionally stated those principles at a high level of abstraction because

Rawlsian conception advances, rather than displaces, Rawls's larger project." See Nussbaum, Frontiers, supra, note 2, at 6. 7 On utilitarianism, see Nussbaum, Frontiers, id., at 71-73. Rawls, A Theory, supra, note 6, at 136-42, 256-57. !d., at 136-42, 256-57. See also Thomas Nagel, "Rawls on Justice" in Norman Daniels, ed., Reading Rawls: Critical Studies on Rawls' A Theory ofJustice (Oxford: Blackwell, 1975) I, at 7-8; Robert P. Wolff, Understanding Rawls: A Reconstruction and Critique of A Theory of Justice (Princeton: Princeton University Press, 1977), at 28; Justin Schwartz, "Relativism, Reflective Equilibrium and Justice" (1997) 17 L.S. 128, at 134-35 [hereinafter "Schwartz"]. 10 Rawls, A Theory, id., at 137. 11 /d. In Rawls' framework, social primary goods may include liberties, opportunities, the social bases of self-respect and income. See also Ravi A. Malhotra, "Justice as Fairness in Accommodating Workers with Disabilities and Critical Theory: The Limitations of a Rawlsian Framework for Empowering People with Disabilities in Canada" in Dianne Pothier & Richard Devlin, eds., Critical Disability Theory: Essays in Philosophy, Politics. Policy and Law (Vancouver: University of British Columbia Press, 2006) [hereinafter "Pothier & Devlin"] 70. 12 Rawls, A Theory, id., at 20; Schwartz, supra, note 9, at 131.

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they were designed to provide guidance on the structure of a polity's basic social arrangements, rather than to govern day-to-day policy decisions. The first of Rawls' principles of justice states that "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all". 13 The second principle stipulates that "social and economic inequalities ·are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality and opportunity". 14 The first clause of the second principle is the redistributive mechanism that has become known as the Difference Principle. 15 Nussbaum's Frontiers of Justice 16 is an attempt to answer some of the questions that Rawls left unexplored. Nussbaum identifies three distinct groups whose needs, she argues, were not adequately taken into account by Rawlsian social contract theory: people with disabilities, citizens of less developed countries and animals. All three of these groups, in her view, raise profoundly important equality issues that Rawlsian theory simply cannot address, because of its commitment to the idea of the rough equality of the contracting parties and the notion that they seek mutual advantages and are motivated by the pursuit of their own individual interests. 17 The power disparities between the members of the three groups and the average Western citizen suggest that there would very often not be rough equality of the contracting parties. 18 Because the other members of society would be unlikely to receive proportionate advantages from treating Nussbaum's three groups fairly, she argues that Rawls' reasoning breaks down with respect to those groups - that benevolence rather than mutual advantage is required if justice is to be done to them. 19 !d., at 302. ld. 15 Jd., at 76-80. 16 Nussbaum, Frontiers, supra, note 2. As with Rawls' main works, I should clarity at the start that it is impossible in an article to convey the complexity and richness of Nussbaum's critiques of numerous philosophers and concepts in multiple traditions. 17 !d., at 28-29, 34-35, 52, 61. Of course, she is hardly alone in pointing out the exclusion of the group that is of most direct relevance to this chapter, people with disabilities. See, e.g., Harry Brighouse, "Can Justice as Fairness Accommodate the Disabled?" (2001) 27 Soc. Theory & Prac. 537, at 538; Rex Martin, Rawls and Rights (Lawrence: University of Kansas, 1985), at 186. 18 This should not be taken to mean that there could never be rough equality of the contracting parties. A wealthy rubber magnate in a developing country or a wealthy lawyer who uses a wheelchair would be a perfectly plau~ible candidate for a contracting party with at least equal bargaining power. I say more about the weaknesses in Nussbaum's analysis, infra, in Part IV. 19 Nussbaum, Frontiers, supra, note 2, at 62. 13

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To meet this problem, Nussbaum proposes an alternative conception that in her view offers a richer and more substantive measure of equality than Rawls' theory of justice as fairness? 0 Building on her own previous scholarship on gender equality in developing countries and on the work of Amartya Sen in measuring quality of life in development economics, Nussbaum outlines what she calls a Capabilities Approach? 1 In development economics, as she notes, the Capabilities Approach has demonstrated how the measure of a country's Gross Domestic Product is frequently a misleading generalization that hides massive internal disparities in wealth distribution. 22 The Capabilities Approach also incorporates the insight, particularly pertinent to the case of people with disabilities, that equality of resources is conceptually inadequate because humans vary greatly in their ability to transform resources into functioning: X often can accomplish more than Y with an identical basket of goods. 23 In Sen's methodology, people's capabilities depend on a combination of their individual characteristics, their environment and their commodities. An obvious illustration is the formally equal opportunity to receive a free high school education - an opportunity that may be meaningless for a wheelchair user, no matter how gifted or wealthy she is, if the local high school has no elevator. 24 Equally importantly, her dignity and self-respect might be stripped away if, unlike her peers and friends, she has to register at a school outside her

20 To be fair, Nussbaum freely acknowledges that in some respects, such as not setting out any redistributive scheme for those individuals who are above the threshold capability, her theory is actually narrower than Rawls' vision of social justice. It is not intended to be a comprehensive moral doctrine. See id., at 75, 155. 21 While Nussbaum attributes the Capabilities Approach to Amartya Sen, others have credited Lancaster as the original theorist of the Capabilities paradigm. See, e.g., Jude Browne, Simon Deakin & Frank Wilkinson, "Capabilities, Social Rights and European Market Integration" [hereinafter "Browne, Deakin & Wilkinson") in Robert Salais & Robert Villeneuve, eds., Europe and the Politics of Capabilities (Cambridge: Cambridge University Press, 2004) 205, at 205 [hereinafter "Salais & Villeneuve"]. 22 Nussbaum, Frontiers, supra, note 2, at 71 (noting how South Africa was poorly characterized by conventional GDP measures because of extreme wealth inequality). 23 !d., at 74-75. One need not support Nussbaum's reference to Marx's conception of"truly human functioning" to accept the validity of her cogent argument In any case, Nussbaum's approach has the merit of being far more diverse than Marx's primary emphasis on work as the central human activity. Sophie Mitra, "The Capability Approach and Disability" (2006) 16 1. Disability Pol'y :< Stud. 236, at 239-40 [hereinafter "Mitra"]. Of course, at some point, a family's wealth may be so great that it can withdraw a daughter from the public school system entirely but even this option, beyond the means of the vast m~ority of families, requires a private school that is wheelchair accessible.

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immediate neighbourhood. 25 This underscores the point that in Nussbaum's paradigm, each individual (and indeed each animal) must be treated as an autonomous actor and an end in himself or herself. 26 Nussbaum seeks to give more specific content to her conception of equality by identifying a tentative list of 10 central capabilities that she sees as essential to a life with dignity. These capabilities are as follows: (i) "Being able to live to the end of a human life span of normal length"; (ii) "Being able to have good health"; (iii) "Being able to move freely from place to place" without fear of violence, sexual or otherwise; (iv) "Being able to use the senses, to imagine, think and reason"; (v) "Being able to have attachments to things and people outside ourselves"; (vi) "Being able to form a conception of the good and to engage in critical reflection about the planning of one's life" including liberty of conscience and religious observance; (vii) "Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction", to have a sense of selfrespect, and to be free from discrimination "on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin"; (viii) "Being able to live with concern for and in relation to animals, plants, and the world of nature"; (ix) "Being able to laugh, to play, to enjoy recreational activities"; and (x) Being able to have control over one's political and material environment. 27 Each being in Nussbaum's three groups is entitled to realize each of the above capabilities at an appropriate threshold level, no matter how much he or she can give in return. Nussbaum's theory does not permit arbitrary trade-offs between the various capabilities, but requires that they all be protected in a given society's constitutional structure. 28 The theory does not, however, purport to account for inequalities among citizens above the minimum threshold for each category, as it does not claim to be a comprehensive moral theory? 9 I will devote Part N of this paper to an analysis ofthe strengths and weaknesses of Nussbaum's paradigm in the specific context of equality rights for Canadians with disabilities. I do think that, as a general matter, 25

167-68.

Nussbaum draws a very similar example. See Nussbaum, Frontiers, supra, note 2, at

Jd., at 78. Id., at 76-78. 28 Jd., at 175. As an anonymous reviewer noted, actual enforcement of core human entitlements at a specific level through constitutional law would be improbable but this is what Nussbaum's ideal theory envisions. 29 Jd., at 75, I 55. 26

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her theory allows for a richer sense of equality than Rawls' vision. Nussbaum's treatment of people with both physical and mental disabilities as autonomous subjects deserving of justice, and as actors with real choices to make about the course of their lives, is in itself a significant advance over Rawls' vision. Rawls did not treat the needs of people with disabilities as a matter of fundamental justice; the few references he did make to them in A Theory of Justice invoked stereotypes of pity and charity rather than ideas of dignity and equality. 30 Another particularly appealing feature of Nussbaum's approach is the fact that she sees her list of human capabilities as being open-ended and continuously subject to revision and reinterpretation. 31 This makes it especially pertinent to the equality claims of people with disabilities, which often challenge traditional conceptions of how one performs everyday activities. More specifically, the content Nussbaum gives to some of her 10 central human capabilities offers real promise for the empowerment of people with disabilities. For instance, she takes a very broad view of her fourth capability - the use of the senses, imagination, thought and reasoning. She insightfully links the ability to use the senses and to reason with the provision of an adequate education, which she sees as encompassing literacy, mathematics and scientific training. 32 Clearly, this capability could ground an argument that workplaces ought to provide continuous on-the-job training, the need for which is steadily growing as workers are expected to adapt to rapid technological developments. 33 Any such on-the-job training would have to be adapted to the needs of workers with disabilities - for example, by providing adapted computer equipment for a blind worker, or permitting a worker with multiple sclerosis to take longer breaks when needed. Recognizing Nussbaum's fourth capability could also lead to a broader appreciation of what it means for people with disabilities to use their senses - for example, by encouraging communication through sign language and Braille. Similarly, Nussbaum's lOth central human capability - control over one's environment- beckons to be filled with substantive conten1 by advocates of social justice. Nussbaum divides this capability into twc

°

For further discussion, see generally Malhotra, supra, note II. Nussbaum, Frontiers, supra, note 2, at 78-79. 32 /d., at 76. 13 See, e.g., Mark Barenberg, "Democracy and Domination in the Law of Workplact Cooperation: From Bureaucratic to Flexible Production" (1994) 94 Col urn. L. Rev. 753. 3

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components: the political and the material. The political component encompasses the ability to participate effectively in political decisions that govern one's life and the life of the community, and it also includes the protection of freedom of expression and association. The material component encompasses the ability to exercise property rights on an equal basis with others, as well as freedom from improper search and seizure. It also includes being able to seek employment, to exercise practical reason at work, and to have relationships of mutual recognition with other workers. 34 This vision of control over one's material environment would open a variety of possibilities for creative accommodation of workers with disabilities, such as flexible time or working at home. 35 Nussbaum's critique of Rawls is certainly not without controversy. Samuel Freeman has strongly criticized Nussbaum for mischaracterizing the extent to which Rawlsian social contract theory assumes free, independent parties of comparable power who are motivated by the search for mutual advantage. 36 Freeman insists that Rawls' real focus was on the search for terms of social cooperation that would be acceptable to rational individuals who aspired to interact on the basis of reciprocity and mutual respect. In Freeman's view, it is wrong to see Rawls as emphasizing a goal of mutual advantage, and thereby as marginalizing those who might be less economically productive. 37 Moreover, Freeman suggests that Nussbaum's quest to equalize capabilities is simply untenable, because different individuals would inescapably face different obstacles in making use of particular rights and liberties.38 In what is perhaps his most telling point, Freeman defends Rawls' lack of specific attention to people with disabilities, on the basis that their problems are best dealt with through the governance

34 Nussbaum, Frontiers, supra, note 2, at 77-78. The reader may notice how American constitutional law influences Nussbaum's articulation of these rights in areas such as the right to hold property. 35 Jd., at 214-16. It should be acknowledged that the example Nussbaum uses is that of accommodations for caregivers, particularly women. Nevertheless, the same principles ought to apply to the accommodation of disabilities. 36 Samuel Freeman, "Frontiers of Justice: The Capabilities Approach vs. Contractarianism" (2006) 85 Tex. L. Rev. 385, at 400-11. 37 Jd., at 395, 402. 38 This invokes earlier criticisms by Ronald Dworkin of Sen's scholarship on capabilities. Freeman provides the example of a more gifted speaker having greater opportunities for political influence. Id., at 420-21.

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arrangements arrived at in the Original Position rather than being treated as "problems of the background justice of the basic structure". 39 I find Freeman's defence of Rawls' position against Nussbaum's criticisms to be unconvincing. It may be true that the only reason Rawls did not address certain public policy issues, including the rights of people with disabilities, was because they were not seen as matters of grave concern at the time he was writing. It may also be true that some of these "newer" issues, such as a concern for equality for gays and lesbians or for the environment, can easily be incorporated into Rawls' framework without altering any of its basic principles. However, disability rights raise more complex questions about the very meaning of equality, and they pose more of a challenge to the very structure of Rawls' theory. To give a concrete illustration, according substantive equality to a gay or lesbian worker does not usually require any costly changes to the production process itself,40 but accommodating workers with disabilities often does. Canadian constitutional jurisprudence, unlike that in the United States, has consistently articulated a vision of substantive equality which appreciates that equal treatment does not necessarily mean identical treatment. Standards applied in the workplace or in the provision of services must be as inclusive as possible,41 and the realization of rights (especially but not solely for people with disabilities) may require various accommodations to translate those rights into functional equality in practice. Finally, although in the United States legislative distinctions on the basis of disability are subject only to a very minimal standard of review, 42 the Canadian Charter specifically prohibits discrimination on the basis of disability in the same way as it prohibits discrimination on the basis of race or sex.43 Thus, Canadian public policy recognizes that disability rights do have implications for the basic structure of our social institutions. !d., at 415. See, e.g., The Committee on Sex and Law, "The Employment Non-Discrimination Act" ( 1997) 52 Rec. 735, at 743. But see Carlos A. Ball, "Moral Foundations for a Discourse on SameSex Marriage: Looking Beyond Political Liberalism" (1997) 85 Geo. L.J. !871, at 1884-95, arguing that standard Rawlsian theory is inadequate to ground a defence of same-sex marriage. Yet the recognition of same-sex marriage in a growing number of liberal societies suggests that it can be done. 41 See, e.g., Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] S.C.J. No.l5,[2007] I S.C.R.650,atpara 161 (SC.C.). 42 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (ruling that discrimination against people with intellectual disabilities was subject only to scrutiny on a rational basis). 43 Charter, supra, note I, s. 15. 39

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In Part N I will come back to Nussbaum's Capabilities Approach and look more closely at its potential application to disability rights in Canada. Before doing that, I will briefly review the social model of disablement, which has close links to Nussbaum's vision of disability rights. III. THE SOCIAL MODEL DISABLEMENT AND ITS IMPLICATIONS FOR EQUALITY RIGHTS

The social model of disablement sees disability as a social construct, and sees society's structural and attitudinal barriers as the fundamental cause of the marginalization of people with disabilities. 44 This marginalization is profound and is reflected in all areas of life, as measured by socio-economic indicators including high poverty rates, high unemployment rates and low education levels. 45 The social model contrasts sharply with the medical model which prevailed in Western society until quite recently, and which remains influential. In the medical model, people with disabilities are regarded as unproductive as a direct result of their physiological impairments, and are in effect excluded from participation in society until they can be cured. In the past, especially as the values of the Enlightenment took hold, there was widespread institutionalization of people with mental, physical and intellectual disabilities. 46 This collective stigmatization and 44 Mitra, supra, note 24, at 237. For a good overview, see Michael Oliver, The Politics of DisablemenL (London: Macmillan, 1990). A more recent text is Gary L. Albrecht, Katherine D. Seelman & Michael Bury, eds., Handbook of Disability Studies (Thousand Oaks, California: Sage, 2001) [hereinafter "Albrecht, Seelman & Bury"]. For a specifically Canadian account, see Jerome E. Bickenbach, Physical Disability and Social Policy (Toronto: University of Toronto Press, 1993). For a recent challenge to the social model within a disability rights perspective, see generally Torn Shakespeare, Disability Rights and Wrongs (New York: Routledge, 2006) [hereinafter "Shakespeare"]. 45 Canada, Office for Disability Issues - Human Resources and Social Development Canada, Advancing the Inclusion of Persons with Disabilities 2006 (Ottawa: Human Resources and Social Development Canada, 2006), online: [hereinafter "Advancing"]. For example, recent statistics suggest that four out of five women with disabilities and nearly two out of three men with disabilities reported incomes of less than $30,000 per year. See Ena Chadha & Laura Schatz, "Human Dignity and Economic Integrity for Persons with Disabilities: A Commentary on the Supreme Court's Decisions in Granovsky and Martin" (2004) 19 J.L. & Soc. Pol'y 94, at 110-11 [hereinafter "Chadha & Schatz"]. 46 David L. Braddock & Susan L. Parish, "An Institutional History of Disability" in Albrecht, Seelrnar1 & Bury, supra, note 44, II at 25; Harlan Hahn, "Advertising the Acceptably Employable Image: Disability and Capitalism" in Lennard J. Davis, ed., The Disability Studies Reader (New York: Routledge, 1997). 172, at 176.

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degrading treatment eventually led people with disabilities to realize that it was not their impaired bodies but the structures in society that had to change. Exposure to the workplace gave them the confidence to politicize what they had previously regarded as personal problems, much as second-wave feminists had to create an entirely new discourse to bring to light the profound injustices of sexual harassment and violence against women. 47 Alienated students with disabilities, who resented patronizing or demeaning treatment in segregated schools, often acquired a disability rights consciousness.48 The same was true of disabled workers, including disabled veterans, who were commonly treated as burdens.49 The social model of disablement shifts the focus to illustrate how the social inclusion of people with disabilities is precluded by barriers staircases that impede access for those with mobility impairments, print materials that are inaccessible to visually impaired people, a lack of readily available sign language interpretation, and so on. Some barriers are physical. Others involve attitudes, on the part (for example) of employers and school authorities who would rather not deal with the needs of people with disabilities. 50 In legal discourse, the social model transcends conventional equality debates and imposes a more substantive conception of equality, requiring accommodation up to the point of undue hardship. In the U.S. context, the Americans with Disabilities Act ("ADA"), passed in 1990, stipulated reasonable accommodation requirements for employers and for those offering public amenities. 51 In the Canadian context, a jurisprudence to the same 47 See Nancy Fraser, Justice Interruptus: Critical Reflections on the "Postsocialist" Condition (New York: Routledge, 1997), at 81. 48 For discussion of the barriers experienced by students with disabilities in segregated education, see, e.g., Nancy E. Hansen, "Surmounting Perfect Body Syndrome: Women with Disabilities and the Medical Profession" in Houston Stewart, Beth Percival & Elizabeth R. Epperly, eds., The More We Get Together ... (Charlottetown, Prince Edward Island: Gynergy Books, 1992) 49, at 51-52; Nancy E. Hansen, "Spaces of Education: Finding a Place that Fits" (2005) I Rev. Disability Stud. 22. 49 See generally Samuel R. Bagenstos, "The Americans with Disabilities Act as Welfare Reform" (2003) 44 Wm. & Mary L. Rev. 921 for a critical appraisal of the disability rights movement. 50 An interesting intervention on the competing theories of disablement may be found in Marcia H. Rioux & Fraser Valentine, "Does Theory Matter? Exploring the Nexus between Disability, Human Rights, and Public Policy" in Pothier & Devlin, supra, note 11, 47, at 47-69. 51 An account of the legislative drafting that produced the ADA may be found in Chai R. Feldblum, "Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?'' (2000) 21 Berkeley J. Emp. & Lab. L. 91. While ADA jurisprudence in the employment area has diverged dramatically from Canadian law in the last few years, it is beyond the scope of this article to outline the reasons for this difference.

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effect has evolved. That jurisprudence, building on a tradition of accommodating religious minorities, has evolved under our various human rights codes and under the Charter, which explicitly prohibit discrimination on the basis of disability. 52 This requirement of accommodation offers a realistic and pragmatic way to enable people with disabilities to participate in, contribute to and flourish in the community as full and equal citizens. 53 In Part IV, I turn to evaluating Nussbaum's Capabilities Approach in light of the social model of disablement.

IV. NUSSBAUM'S CAPABILITIES APPROACH AND ITS APPLICATION TO DISABILITY RIGHTS 54

Because Rawls' paradigm aspires to equality of resources, it has difficulty in measuring well-being and furthering real equality where individuals, because of disability or for other reasons, vary significantly in their capacity to transform resources into capabilities. Nussbaum's approach acknowledges that one must ensure that a person is actually able to use the resources in question. 55 This parallels the critique by disability rights activists of restaurants and hotels that do not specifically ban wheelchair users and others with mobility impairments but leave in place barriers that in practice preclude access. Nussbaum sees that formally equal access to a restaurant which is in fact inaccessible violates the dignity of a wheelchair user. 56 The reasoning underlying the Capabilities Approach, I would argue, is very much akin to the reasoning that underpins the social model of disablement and the associated legal requirement of accommodation.

52 For a good overview of disability discrimination in the employment context, see Michael Lynk, "Disability and the Duty to Accommodate: An Arbitrator's Perspective" [2001-02] Lab. Arb. Y.B. 51 [hereinafter "Lynk"]. For a discussion of how the Canadian duty to accommodate disabilities is rooted in our generous approach to accommodating religious minorities, see Ravi Malhotra, "The Legal Genealogy of the Duty to Accommodate American and Canadian Workers with Disabilities: A Comparative Perspective" (2007) 23 Wash. U. J.L. & Pol'y I. 53 See generally Richard Devlin & Dianne Pothier, "Introduction: Toward a Critical Theory of Dis-Citizenship" in Pothier & Devlin, supra, note II, at 1-22. 54 I focus here exclusively on Nussbaum's theory as it applies to people with disabilities. I have written elsewhere a critique of her theories with respect to citizens of less developed countries. See Ravi Malhotra, "Expanding the Frontiers of Justice: Reflections on the Theory of Capabilities, Disability Rights and the Politics of Globai Inequality" (2008) Socialism & Democracy 22, 83-100. 55 Nussbaum, Frontiers, supra, note 2, at 74-75. 56 !d., at 167-68.

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Another strength of Nussbaum's approach is that her list of capabilities is open-ended, articulated at a very general level and subject to continuous revision by citizen deliberation, legislatures and courts as new information is acquired. 57 This again parallels a common practice in disability accommodation in the area of employment: the use of interactive dialogue between employer and worker (and the union, if there is one) to modify proposed accommodations over time to suit the worker's individual needs. 58 For instance, a worker who is requesting a modified shift that might present difficulties for co-workers under the collective agreement might rethink his or her request upon learning of the impact it will have on others. 59 Nussbaum's flexible and creative approach to each of the capabilities on her Jist fits well with the highly variable situations that can arise in disability accommodations. A third advantage of Nussbaum's approach is that her concept of core human entitlements is far broader in scope than Rawls' concept of primary goods, and therefore has more chance of fostering substantive equality for people with disabilities. This is well illustrated by the fourth item on Nussbaum's list being able to use the senses. 60 In her formulation, this would encompass imagination, thought and reasoning, and would call for an adequate education that would include literacy as well as mathematical and scientific training. 61 By explicating the right at stake in such detail as a core entitlement, Nussbaum sets a high standard for policymakers who deal with the education of children with disabilities. Her uncompromising insistence that all citizens be evaluated on the same criteria of human flourishing 62 serves as a powerful bulwark against those who would consign students with intellectual or physical disabilities to a third-rate education focused entirely on acquiring independent living or vocational skills. As she passionately argues, "strategically, the right course seems to be to harp on the single list as a set of nonnegotiable social entitlements, and to work tirelessly to bring all children with disabilities up to the same threshold of capability that we set for other citizens."63 However, she makes it clear that her use of a single list of capabilities is in no way intended to preclude ld., at 78-79. Lynk, supra, note 52, at 60. 59 1 do not mean to imply that provisions of collective agreements should always trump the duty to accommodate disabilities, and that is by no means the case in Canadian law. 60 See supra, note 32, and accompanying text. 61 Nussbaum, Frontiers, supra, note 2, at 76. 62 !d., at J 82. 63 Jd., at 190. 57

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individualized, custom-tailored accommodations, whether in education or employment.64 The examples Nussbaum uses reflect the fact that her analysis of disability rights was framed with a particular eye to the needs of children with intellectual disabilities. 55 Her detailed consideration of the barriers to equality faced by those children, and of how best to empower them, is tremendously valuable in an area that disability rights advocates themselves all too often ignore. However, Nussbaum does purport to deal with disability rights more broadly, including workers' rights. In trying to explain why Rawls' social contract approach fails to address the needs of workers with disabilities, she reverts to a contested theme that is common in the American legal literature - the idea that, unlike victims of sexual or racial discrimination, workers with disabilities are economically inefficient.66 To this effect, she cites the libertarian legal scholar Richard Epstein, who is on record as opposing all civil rights laws, and his critique of the ADA as promoting inefficiency.67 In Nussbaum's view, people with disabilities present insurmountable difficulties to a Rawls ian social contract analysis because most of them are simply too atypical in their work performance and productivity. 68 This is so even though, as Nussbaum admits, groups other than workers with disabilities - such as pregnant women, who overlap with a high percentage of all women at some point during their careers - do in fact require accommodations that impose significant financial and administrative costs on employers. 69 While this of course varies depending on numerous interacting variables, I would suggest that many people with disabilities are in fact more productive than is widely thought. 70

Id.

Sections of Nussbaum's two chapters on disabilities are spent on a detailed discussion of the medical and social history of children of colleagues of hers who have various disabilities. 66 Nussbaum, Frontiers, supra, note 2, at 117-18. 67 Id., at 118, note 38. For a typical exposition of Epsteip's views, see generally Richard Epstein, Forbidden Grounds: The Case against Employment Discrimination Law (Cambridge: Harvard University Press, 1992). While it should be noted that Nussbaum's reliance on Epstein is through a footnote, it is striking that she seems completely unaware of the significant literature on the implications of the ADA for equality theory and equality rights. 68 ld.,at 117-18. 69 Jd., at 118, note 37. 7 For a good overview, see generally Michael A Stein, "The Law and Economics of Disability Accommodations" (2003) 53 Duke L.J. 79 [hereinafter ''Stein"]. 65

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Related to this issue is a more subtle point. 71 As noted earlier, Nussbaum's theory relies much less on self-interest than Rawls' theory does, and much more on the idea of benevolence among citizens. 72 This enables her to justify a broader range of duties that do not depend on mutual advantage. One can also see the imprint ofNussbaum's emphasis on benevolence when one examines her fifth and seventh central human capabilities - being able to have attachments to people and things outside ourselves/ 3 and being able to live with others and interact meaningfully with them. 74 Both of these capabilities rely on elements of benevolence for their realization. However, Nussbaum's apparent acceptance of the problematic idea that workers with disabilities are less efficient, and need benevolence from the rest of society, reflects a limited understanding of the issues relating to disability accommodation in the workplace. On the one hand, her invocation of benevolence makes clear that her theory transcends efficiency concerns and envisages duties toward people with disabilities, regardless of their ability to work. This is no small advance, and one which resonates with the arguments of some disability studies scholars to the effect that the social model focuses too heavily on removing structural barriers and neglects the reality that some proportion of people with disabilities will be restricted in the type of work they can do, even with accommodations. 75 On the other hand, it must be asked whether Nussbaum understates the efficiency of workers with disabilities. Is the discrimination and marginalization occasioned by their disabilities so structurally different from that occasioned by (for instance) race and gender as to warrant a theoretical response which relies significantly on benevolence? There is in fact American legal scholarship that challenges the use of efficiency as a criterion for distinguishing race and sex discrimination from disability discrimination. Samuel Bagenstos has argued eloquently that like "canonical" civil rights legislation, which prohibits discrimination on the basis of race and gender, more recent legislation prohibiting disability discrimination in fact seeks to dismantle systemic subordination of a minority group. 76 While disability 71

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I thank Bernie Adell for calling my attention to this point Nussbaum, Frontiers, supra, note 2, at 122-23. See supra, note 27, and accompanying text.

Id. Shakespeare, supra, note 44, at 42. 76 Samuel R. Bagenstos, "'Rational Discrimination', Accommodation, and the Politics of (Disability) Civil Rights" (2003) 89 Va. L. Rev. 825, at 859 [hereinafter "Bagenstos, 'Rational'"). This view is generally accepted as uncontroversial in Canadian constitutional theory, given the 74

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accommodations may often involve some costs, 77 Bagenstos correctly notes that to regard these costs as a form of economic redistribution (as Nussbaum's position implies) is to regard current barriers that affect disabled workers as part of the accepted social norm - unlike the barriers that affect other groups, such as a lack of child care for young mothers. 78 Nussbaum's seventh core human capability consists of being able to interact with others without discrimination on various grounds, among which disability is not included. 79 This may be merely an oversight, but I think it is indicative of her failure to truly think through the implications of disability rights, and it relates directly to a deeper dilemma that her theory does not help to resolve. She suggests that there are people whose impairments are such that they raise issues which cannot be addressed through the Capabilities Approach - for example, a colleague's daughter who has cerebral palsl 0 - but she does not give a convincing explanation of why this is so. She regards disabilities of that sort as simply unfortunate, and she sees the solution in terms of curing them. Indeed, she goes so far as to say that a decent society would genetically engineer fetuses to prevent the birth of individuals with such disabilities. 81 Yet she argues that this would not hold for disabilities such as Down's Syndrome, Asperger's Syndrome, blindness or deafness, because- individuals with those disabilities would be able to achieve the central human capabilities. 82 This is troubling, in that Nussbaum provides no principled reasons for drawing such a distinction, and never clearly articulates how one is supposed to draw it. Her assumptions about the capabilities of some people with disabilities, and her willingness to exclude them from the scope of the Capabilities broader view of substantive equality that prevails in Canada and the express inclusion of disability as a prohibited ground ins. IS of the Charter. 77 These costs should not, however, be exaggerated. See Stein, supra, note 70, at I 03-104 (noting that a study of accommodations provided by Sears over nearly 20 years found that nearly three-quarters were made at no cost). Moreover, as Nussbaum concedes, banning certain types of sex discrimination, such as that based on pregnancy, certainly imposes costs. See Nussbaum, Frontiers, .supra, note 2, at I I 8, note 37. 78 Bagenstos, "Rational", supra, note 76, at 862-63. 79 Nussbaum, Frontiers, supra, note 2, at 77. I think this is particularly telling because she includes sexual orientation discrimination on her list despite the fact that sexual orientation is relatively undeveloped as a ground of discrimination in American anti-discrimination law. 80 ld., at 192-93. 81 Jd., at 193. 82

Jd. lt is perhaps also worth noting that Nussbaum's previous schoJarship, which she

repudiates in Frontiers of Justice, seemed to argue that one had to have all central human capabilities in order to qualify as a human life. See id., at I 81, note I 8.

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Approach, do not fit well with the insights offered by the social model of disablement. 83 Nevertheless, I remain convinced that because of the flexibility of Nussbaum's capabilities paradigm and its openness to innovative and creative solutions, it is better suited than Rawls' theory of justice as fairness to help resolve the highly complex equality cases that are now reaching our courts. 84 As an example, I will now apply the Capabilities Approach to a decision of the Supreme Court of Canada on the equality rights of persons with temporary and intermittent disabilities.

V. THE CAPABILITIES APPROACH IN ACTION: RETHINKING GRANOVSKY

Granovsky v. Canada (Minister of Employment and Immigration/ 5 was the Supreme Court's first decision on disability discrimination since Law v. Canada (Minister of Employment and Immigration), 86 in which the Court enunciated a new test for analyzing claims under section 15 of the Charter. The Granovsky case involved an application for a disability pension under the Canada Pension Plan ("CPP"). The CPP is a nationwide contributory public pension scheme funded by compulsory contributions from employers and employees based on hours worked by the particular employee. It provides for pensions at retirement age for all workers, and also provides for earlier disability pensions for those who become permanently disabled before retirement age and who (in keeping with the self-funded and contributory nature of the CPP) also meet the criteria of recent attachment to the workforce set out in the Canada Pension Plan. 87 At the relevant time, those criteria, embodied in what 83 See Part lJl above. Michael Stein similarly argues that, unlike Amartya Sen's foundational work on capabilities, Nussbaum's theory requires that individuals with intellectual disabilities must come close to achieving the species norm for humans in each of the I 0 categories that she identifies as central to human dignity. See Michael A Stein, "Disability Human Rights" (2007) 95 Calif. L. Rev. 75, at 101-106. 84 For an attempt by Nussbaum to apply the Capabilities Approach to, among other cases, recent American Supreme Court jurisprudence on disability rights, see Martha C. Nussbaum, "Foreword: Constitutions and Capabilities: 'Perceptions' Against Lofty Formalism" (2007) 121 Harv. L. Rev. 4, at 74-77. 85 Supra, note 3. 86 [1999] S.C.J. No. 12, [1999] I S.C.R. 497 (S.C.C.) [hereinafter "Law"]. The Law test asks (i) if there is differential treatment; (ii) if the differential treatment is based on an enumerated or analogous ground; and (iii) if the differential treatment is discriminatory by imposing a burden or withholding a benefit because of stereotypes of a protected group. 87 Granovsky, supra, note 3, at paras. 9-11; Canada Pension Plan, R.S.C. 1985, c. C-8.

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was known as the drop-out provisiOn in section 44 of the Canada Pension Plan, provided that a claimant for a disability pension must have contributed to the CPP in five of the I 0 years preceding the application (the 5110 requirement) or two of the three years preceding the application (the 2/3 requirement). 88 However, the statute relaxed this contribution requirement if, in the years before making the claim, the claimant had a permanent disability that affected his or her ability to work and therefore to make contributions. 89 The applicant, Granovsky, became permanently disabled in 1993, and he applied at that time for a CPP disability pension. He had been temporarily disabled on an intermittent basis since 1980, as a result of a back injury that occurred on the job in that year. He had made CPP contributions in several of the years before 1980; in fact, from his contribution history as set out in the Court's judgment,90 it appears that if he had become permanently disabled by 1985, he would have met the 5110 contribution requirement. However, because his temporary but recurring disability had kept him off work for nine of the I 0 years preceding 1993 and for all of the three years preceding 1993, he did not · meet either the 5/10 or 2/3 contribution requirement, which the statute required him to do because the disability that kept him from working (and contributing) was not a permanent one. 91 His application for a disability pension was therefore turned down. Granovsky brought a complaint of discrimination on the basis of disability, under section 15(1) of the Charter. He pointed out that the CPP statute required him to meet the same contribution threshold as an able-bodied worker who had no disability at all, and that although the disability which kept him from meeting that threshold was temporary and intermittent rather than permanent, it was nonetheless a disability. He therefore argued that he had been discriminated against in comparison to able-bodied workers. 92 Writing for a unanimous Supreme Court, Binnie J. noted that Granovsky was seeking a benefit (i.e., a disability pension with relaxed contribution requirements) which was not available to someone who had These requirements are explained id., in para. 44 of the Court'sjudgment. Id., at paras. 11-12. Of course, as the Court noted, the relatively lax contribution rules were themselves an attempt to accommodate those who, for whatever reason, might not be able to make regular contributions. The reason did not have to be related to a protected ground. 90 Id., at para. 4. 88

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ld. Id., at para. 8.

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been able-bodied during the years before he or she became permanently disabled, but only to someone who had been permanently disabled during the years before he or she claimed the pension. Therefore, Binnie J. held, Granovsky should not be compared to claimants who had been able-bodied, but to those who had been permanently disabled. Justice Binnie acknowledged that Granovsky's temporary disability did cause him to lose the benefit he was claiming, so he had satisfied the first two parts of the test set out in Law - that is, he had suffered differential treatment, and he had suffered it on a ground prohibited by section 15( 1) of the Charter. 93 However, Binnie J. concluded that Granovsky had failed to meet the third part of the Law test, because the differential treatment in question did not affront "his dignity or legitimate aspirations to human self-fulfilment". 94 Justice Binnie explained that conclusion as follows: I do not believe that a reasonably objective person, standing in [Granovsky's] shoes and taking into account the context of the CPP and its method of financing through contributions, would consider that the greater allowance made for persons with greater disabilities in terms of CPP contributions "marginalized" or "stigmatized" him or demeaned his sense of worth and dignity as a human being. 95 In analyzing the Granovsky decision, I would at the outset acknowledge that it was relatively sophisticated in its recognition that structural barriers were the key problem in the lives of Canadians with disabilities. For instance, Binnie J. wrote: It is ... useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely, the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks. 96 This passage constitutes an important acknowledgment of the very real potential of people with disabilities to accomplish desired goals and to flourish in society. 97 I would argue, however, that the Granovsky 93 9~ 95 96

!d., at paras. 52-53. /d., at para. 69.

!d., at para. 81. !d., at para. 34.

97 Having said that, it is also true that the decision invokes many stereotypical anecdotes about successful people with disabilities, including Terry Fox and Stephen Hawking, which might

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decision's interpretation of dignity betrays an impoverished conception of equality, and reflects deeper problems that constitutional law theorists have raised with respect to the dignity test. Let us begin with a closer examination of how the decision in Granovsky applied the Law test. It was clear that the first two parts of that test were met: Granovsky had been subjected to differential treatment, and that treatment was based on a ground enumerated in section 15. The stumbling block was the third part of the test: whether, in the words of the Court in Law, the differential treatment had caused discrimination: by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of . . 98 C ana d Ian society.

In its decision in Law, the Supreme Court had identified four contextual factors that were to be considered in applying the third branch of the Law test. 99 In Granovsky, the Court held that the first contextual factor whether the claimant had experienced pre-ex1stmg disadvantage, stereotyping, or vulnerability- was not present because most of the population could be said to have experienced a temporary disability at some point in their lives.IOO Yet this failed to acknowledge the fact that the applicant's temporary disability was so severe that it prevented him from undertaking work over a period of several years 101 - a disadvantage which can hardly be said to be shared by the majority of Canadian workers. With respect to the second contextual factor - whether there was a sufficient relationship between the differential treatment and the purpose of the legislation in question - the Court distinguished the situation in be interpreted as a subtle critique of the trivial nature of the claimant's impairment. See Gilbert & Majury, supra, note 5. 98 Law, supra, note 86, at para. 88. 99 Jd. These are (i) whether the claimant had experienced "any pre-existing disadvantage, prejudice, stereotyping or vulnerability"; (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual needs, capacity or circumstances of the claimant; (iii) the ameliorative purpose or effects of the law in question upon a more disadvantaged person or group in society; and (iv) the nature and scope of the interest affected by the impugned law. 100 Granovsky, supra, note 3, at para. 60. 101 See supra, notes 90-91, and accompanying text.

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Granovsky from that in Vriend v. Alberta, 102 where it had held that the failure to include sexual orientation as a prohibited ground of discrimination in Alberta's Individual's Rights Protection Act103 violated Vriend's rights under section 15 ofthe Charter. The Court in Granovsky concluded that whereas in Vriend the exclusion of sexual orientation as a ground of discrimination was inconsistent with the purpose of human rights legislation, the limitations on the drop-out exception in the Canada Pension Plan were consistent with Parliament's purpose, which was to provide pensions for a "specific group of contributors whose needs and circumstances correspond precisely to the purpose of the legislation" .104 In my view, this reflects a rather impoverished conception of equality rights. Just as the failure to prohibit discrimination against gays and lesbians was held in Vriend to be inconsistent with the general purpose of human rights legislation, so the arbitrary distinction drawn by the Canada Pension Plan between _the effect of permanent and temporary disabilities on a claimant's contribution history harmed the' dignity of people with temporary disabilities and was inconsistent with a broader view of the purposes of that Act - that is, to provide economic security for those who had paid into the system. If Parliament establishes such a scheme, it must be done consistently with the equality principles enshrined in the Charter. The third contextual factor is "the ameliorative purpose or effects of the impugned law on other groups in society". 105 The Court concluded that the purpose of the law was to assist a more disadvantaged group, namely, those with permanent disabilities. 106 Despite the Court's explicit denial "that section 15 claims can properly be decided by pitting groups of disadvantaged people against each other to determine who is more disadvantaged", 107 the Court's reasoning inevitably does exactly that. People with a history of temporary disabilities who have made years of pension contributions, and who are nonetheless denied a disability pension, can hardly said to be less disadvantaged simply because the fluctuating nature of their disability did not entirely preclude their ability to work. They too have to pay their bills and raise their families. It is

102 103

10' 105 106 107

[1998] S.C.J. No. 29, [1998]1 S.C.R. 493 (S.C.C.). R.S.A. 1980, c. 1·2. Granovsky, supra, note 3, at para. 61. Jd., at para. 65. Id., at para. 67. !d.

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counterintuitive to penalize them for having made some pension contributions, but not enough. Finally, the fourth contextual factor is the "nature and scope of the interest represented by the impugned law". 108 The Court maintained that neither "lack of respect [nor] loss of dignity is manifested in the CPP drop-out provision, which is simply tailored to correspond to the requirements of the pension benefit itself' 109 - a benefit "directed to a narrow class of persons seeking a narrowly restricted benefit". 110 This misses the point that the very terms of the legislation did in fact strip people with temporary disabilities of entitlement to a benefit. The Act created a benefit for disabled people, but denied it to people with a certain type of disability, even though they needed it to realize important capabilities. That in itself should be enough to make out a case of discrimination, and to shift the onus to the government to prove justification for the discrimination under section 1 of the Charter. Dianne Pothier has persuasively argued that the dignity test is so slippery and nebulous that courts easily manipulate it to allow them to reach a desired outcome. 111 Others have raised concerns that the contextual factors to be considered in evaluating the injury to the claimant's dignity may improperly focus on the legitimacy of the purpose behind the legislative scheme - a matter more appropriately addressed at the section 1 stage - rather than on the harm to the claimant. 112 Finally, there are real questions whether the Law test, which the Court described as combining subjective and objective considerations, 113 can truly appreciate injuries to the dignity of marginalized groups about whom stereotypes abound. This is especially salient in Granovsky: a court might find it particularly difficult to accept that a reasonable person could consider a claimant's dignity to be injured by the loss of a pension because of an intermittent disability. 114 A greater emphasis must be placed on the subjective impact of the law on the claimant- in the context ofGranovsky's claim, on the grave implications for him of the loss of his pension. 108

!d., at para. 68. I d., at para. 69. 110 Jd. 111 Dianne Pothier, "Connecting Grounds of Discrimination to Real People's Real Experiences" (2001) 13 C.J.W.L. 37, at 56. But see Sophia Moreau, "'The Promise of Law v. Canada" (2007) 57 U.T.LJ. 415 (suggesting dignity ought to be a broad concept). 112 Fiona Sampson, "The Law Test for Discrimination and Gendered Disability Inequality" in Faraday, Denike & Stephenson, supra, note 4, at 256-57 [hereinafter "Sampson, 'Law"']. 113 Law, supra, note 86, at para. 59. u 4 Sampson, "Law", supra, note I 12, at 257-58 (writing about the difficulties of disabled female claimants in making their claims understood). 109

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If the dignity test is to be used, I would suggest that the impact on dignity would be better illuminated through the prism of Nussbaum's Capabilities Approach. This is not to stipulate an outcome in favour of Granovsky; even a court fully committed to Nussbaum's paradigm might ultimately have concluded that any Charter violation ought to be saved by section 1. 115 However, under that paradigm, the dignity analysis would require close inquiry into whether the applicant genuinely had the capability to flourish under the legal regime under challenge, as measured on the 10 dimensions of human capability that Nussbaum identifies. On the facts in Granovsky, the applicant was indeed particularly vulnerable because of his history of temporary disabilities, and the impugned provisions of the Canada Pension Plan would consign him to a life of marginalization and poverty, notwithstanding his past contributions to the pension scheme. Accepting that a claimant's dignity must be shown to have been adversely affected in order to ground a violation of section 15, how would Nussbaum's paradigm make a difference in assessing whether that has been done? Let us begin with her 1Oth core human entitlement - control over one's political and material environment. Nussbaum states that such control encompasses, among other things, "having the right to seek employment on an equal basis with others", 116 and "being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers" .117 These considerations can readily ground a broad and substantive right to fair working conditions. Nussbaum systematically attempts to equalize capabilities across a wide range of variables in order to allow the most vulnerable people to convert their resources into real functionings that will improve their lives. In this respect, her approach parallels L'Heureux-Dube J.'s concern, expressed in Egan v. Canada, 118 that Charter jurisprudence should be sensitive to the most marginalized and vulnerable citizens. 119 A rich theory of equality, along the lines articulated by Nussbaum, would include the right to a public disability pension for workers whose 115 Section 1 states that "[t]he Canadiun Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." 116 Nussbaum, Frontiers, supra, note 2, at 77. 117 Jd., at 78. 118 [1995] S.C.J. No. 43, (1995] 2 S.C.R. 513 (S.C.C.). 119 See also Daphne Gilbert, "Time to Regroup: Rethinking Section 15 of the Charter" (2003) 48 McGill L.J. 627, at paras. 13-18 [hereinafter "Gilbert, 'Time"'].

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temporary disabilities allowed them to make only intermittent rather than continuous pension contributions. The right to such a pension can be clearly distinguished from a general entitlement to welfare, because of the contributory nature of the pension scheme. As would be fitting for a constitutionally based right that overrode a legislative restriction on benefit entitlement, it would be truly limited in scope in that it would simply alter the threshold for eligibility to include those who had regularly made contributions prior to a workplace injury or other disabling event, be it permanent or temporary. In addition, other core entitlements articulated by Nussbaum, particularly the fifth and seventh entitlements relating to the ability to form attachments to and have interactions with others, could also support the right to a pension even where the level of contributions over the course of the worker's career is low. Of equal importance, an inclusive conception of dignity - the animating principle that drives Nussbaum's entire analysis - would recognize that intermittent physiological impairments can be just as debilitating in their physical and psychological impact as impairments which are continuous. The Court's dichotomous approach endangers the employment rights of people with a variety of disabilities that may fluctuate widely from day to day - for example, multiple sclerosis and bipolar disorder. 120 A failure to appreciate the accommodation requirements of these individuals raises a serious risk that they will be regarded as malingerers and have their equality claims dismissed out of hand. As written, the Granovsky judgment could create a hierarchy of disabilities, and have precisely the effect that Binnie J. said it should not have 121 -pitting those with permanent disabilities against those whose impairments are temporary or fluctuating but arguably just as severe. 122 Capability theory has gained adherents among scholars interested in broader labour market policy issues. For instance, Browne, Deakin and Wilkinson have written a compelling account of how the notion of 120 See, e.g., Ramona Paetzold, "How Courts, Employers, and the ADA Disable Persons with Bipolar Disorder" (2005) 9 Employee Rts. & Emp. Pol'y J. 29. This study is an eloquent illustration of the issues faced by people with bipolar disorder, who could very well be considered by otherwise well-meaning employers to be malingerers or unproductive workers. 121 Granovsky, supra, note 3, at para. 67. 122 Fiona Sampson,. "Granovsky v. Canada (Minister of Employment and Immigration): Adding Insult to Injury?" (2005) 17 C.J.W.L. 71, at 82 [hereinafter "Sampson, Granovsky"]. Chadha and Schatz point out that this i~ a particular risk for people with disabilities because the complexity of the conditions inevitably means that a large number of comparisons could be made, fracturing a disability rights movement that is often already divided by diagnostic category. See Chadha & Schatz, supra. note 45, at 107.

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capabilities may facilitate an understanding of social rights in the European Union, where governments have frequently sought simultaneously to improve workplace efficiency and the quality of life of workers. 123 Those authors argue that legal rules, whether they prohibit discriminatory laws or provide positive support for mothers of small children to enter the labour market, may act as conversion factors which make it possible for individuals to achieve their goals. 124 Similarly, in the context of constructing a new Europe, Salais and Villeneuve have argued that the capabilities paradigm can encourage a positive relationship between efficiency and equity. 125 Arguments of this sort have become more influential because of the attention accorded to the work of theorists such as Alain Supiot, who has famously written about the need for a new regulatory regime to respond to the massive restructuring of the contemporary workplace. 126 Public policy in Canada would be enriched by taking into account how the Capabilities Approach has facilitated European public policy interventions that try to creatively marry the goals of efficiency and social justice. While Nussbaum herself is silent on these debates and generally avoids taking stances on alternative ways of living a good life, I see such developments as being consistent with her approach. 127 Expanding the conception of dignity beyond that articulated in Granovsky is entirely consonant with this body of scholarship. A constitutionally based entitlement to disability pensions for those with intermittent disabilities who have made significant past contributions would recognize that holding them ineligible does grave harm to their dignity. Recognizing their entitlement would encourage them to make greater efforts to participate in the labour market, in the knowledge that 123 See generally Browne, Deakin & Wilkinson, supra, note 21. At 205, they define social rights as '"claims on resources in the form of income, services or employment".

m

/d.,at211-12. Robert Salais & Robert Villeneuve, "Introduction: Europe and the Politics of Capabilities" in Salais & Villeneuve, supra, note 21, I, at 8. See also Robert Salais, "Incorporating the Capability Approach into Social Employment Policies" in Salais & Villeneuve, id., 283, at 28793. 126 Alain Supiot et al., Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford: Oxford University Press, 2001). Other labels include Post-Fordism. 127 It should not be forgotten that Nussbaum emphasizes repeatedly her deep respect for Rawls' theory of justice, which expresses no preference about the level of government regulation within the confines of his Difference Principle paradigm, and how her own theory should be seen as building on Rawls' foundational work. See, e.g, Nussbaum, Frontiers, supra, note 2, at 81 (observing that "[t]he capabilities approach and Rawlsian contractarianism are allies across a wide space of the terrain of justice, and it seems welcome that theories with somewhat different assumptions and procedures generate closely related results"). 125

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such participation will be taken into account if and when they become permanently disabled. There is no doubt that the unexpected absences caused by some disabilities will often pose difficulties for employers. This cannot be ignored, and it is a real concern for policymakers. However, for the purposes of contributory benefit plans like that in issue in Granovsky, the increasing availability of short-term work makes it more realistic for workers with intermittent disabilities to seek work at times when they are able to do it. The Capabilities Approach points toward requiring contributory benefit plans to recognize such periods of work. I also would suggest that Nussbaum's paradigm is useful to illuminate another problem with the Court's decision in Granovsky: its identification of the relevant comparator group. Granovsky himself had argued that he ought to be compared with able-bodied members of the workforce who had made the requisite level of contributions, and that because of his disability, the statute treated him less favourably than it treated them. 128 The Court disagreed; it held that the appropriate comparator group was people who had suffered from permanent disabilities, on the basis that "the permanently disabled are the people whose drop-out benefit [Granovsky] seeks to share". 129 Subsequently, in Hodge v. Canada (Minister of Human Resources Development), Binnie J. said that the appropriate comparator group is: the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter. 130 The rejection of a claimant's proposed comparator group is no small matter: as Gilbert and Majury have noted, if the claimant happens to choose the wrong comparator, this can doom the entire section 15 claim. 131 While there is no doubt that comparisons are essential for equality law, I believe it is deeply mistaken to place so much weight on the comparator group in Charter analysis, and to allow courts to substitute their own comparator groups for those selected by the Granovsky, supra, note 3, at para. 46. Jd., at para. 50. 130 [2004] S.C.J. No. 60, [2004] 3 S.C.R. 357, at para. 23 (S.C. C.) [hereinafter "Hodge"]. 131 Gilbert & Majury, supra, note 5, at 116-17. It should be stressed that they are simply relving on what Binnie J. explicitly says in Hodge. See Hodge, id., at para. 18. 128

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claimant. As Sampson has argued, among the many problems with comparator group analysis are its formalistic character and its tendency to reinforce dominant norms that are typically part of the problem experienced by a claimant alleging discriminatory treatment. 132 Moreover, it presents unique difficulties for claimants who experience discrimination on more than one prohibited ground. 13 ~ A comparative approach risks returning to the formalist days of the discredited "similarly situated" paradigm, 134 rather than focusing on how best to use the more substantive approach to equality rights that was proudly established in the Andrews case 135 and in the jurisprudence that followed it - an approach which is better suited to protecting someone who is in the precarious and complex situation in which Granovsky found himself. 136 A second difficulty with comparator group analysis is that it wrongly shifts attention away from the effects of the legislation and toward its purposes. As Sampson notes, the focus of the inquiry under section 15 ought to be on whether the legislation has the effect of discriminating against the complainant. Any analysis devoted to the purposes of the legislation should be left to the section 1 stage, where the onus is on the government to justify the Charter breach. 137 In Granovsky, this inversion manifested itself in ill-conceived "floodgates" reasoning, which led the Court to wonder whether upholding Granovsky's claim would

Sampson, "Law", supra, note 112, at 251. /d. A full discussion of intersecting grounds of discrimination (sometimes called intersectionality) is beyond the scope of this paper. But see, e.g., Nitya Duclos, "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 C.J.W.L. 25. 13 " See Gilbert & Majury, supra, note 5, at 130. Although they make these comments in the context of Auton, I think they are equally applicable here. The Court rejected the "similarly situated" test in Andrews v. Law Society of British Columbia, [I 989] S.C.J. No. 6, [I 989] I S.C.R. 143, at para. 30 [hereinafter "Andrews"]. 135 Andrews, id. 136 See, e.g., Dianne Pothier, "Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What's the Fairest of Them All?" in Sheila Mcintyre & Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, ON: LexisNexis Canada, 2006). The fluctuating nature of Granovsky's disability may make its consequences very difficult for many people to grasp, and easy to trivialize. It should be noted that the details of his disability were not (and could not have been) made clear in the Court's judgment, because it had been agreed that Granovsky's Charter claim would be argued before the Court on the assumption that he was severely and permanently disabled at the time he applied for the disability pension, and that if the Charter claim was upheld, the actual extent of the disability at that time would be argued and determined later. In Binnie J.'s words, this gave the case "a somewhat abstract quality": supra, note 3, at para. 6. 137 Sampson, "Granovsky", supra, note 122, at 80-81. 132

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undermine all programs designed to help those with permanent disabilities. 138 Third, courts ought to recognize that in complex constitutional cases, multiple comparisons may well be needed in order to clarify what is usually a complicated argument on behalf of the claimant. 139 In other words, the problem may not be too many comparisons, but too few. Placing so much weight on determining a single appropriate comparator group means that the consequences of choosing the wrong group are immense for the claimant. Nussbaum's Capabilities Approach offers a far better alternative to the artificial distinctions called for by comparator group analysis. Under Nussbaum's paradigm, once the claimant demonstrated discrimination on an enumerated or analogous ground, the next step would be to identify how that discriminatory treatment affected his or her access to each of the core human entitlements. On the facts of Granovsky, rather than endlessly debating whether the applicant ought to have been compared to people with no disabilities or to people with permanent disabilities, a court would examine how the impugned legislation affected the applicant's entitlement to control of his material environment (the tenth item on Nussbaum's list), or his entitlement to have attachments to and interaction with others (the fifth and seventh items on the list). This would avoid the problem of finding comparators where a claim is so novel that it defies comparison.

VI.

CONCLUSION

In this paper, I have attempted to demonstrate how Martha Nussbaum's Capabilities Approach can help us understand a leading Supreme Court of Canada decision, Granovsky v. Canada (Minister of Employment and Immigration). 140 No single paradigm can magically resolve the complex issues with which the constitutional state must constantly grapple in framing and applying modern conceptions of 138 Granovsky, supra, note 3, at para. 14. In an unfortunate hypothetical example, the Court asked (at para. 14) whether Granovsky's claim, if it succeeded, would preclude a legislature from allowing only permanently disabled individuals to have access to paratransit services for people with mobility impairments. The low quality and chronic tardiness of such services across Canada give a totally unrealistic air to concerns that able-bodied people would rush to use them. See generally En a Chadha, "Running on Empty: The 'Not So Special Status' of Para transit Services in Ontario" (2005) 20 Windsor Rev. Legal Soc. Issues 1. 139 Gilbert & Majury, supra, note 5, at 122-23. "" Supra, note 3.

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equality. It is likely that Nussbaum's wisdom will be only one part of a broader solution. It definitely offers even less certainty than John Rawls' theory, and it draws more. heavily on the intuition and imagination of policymakers and adjudicators. However, there are close parallels between Nussbaum's theory and the social model of disablement. In dealing with equality rights in the future at both the constitutional and non-constitutional levels, advocates for people with disabilities, as well as theorists, policymakers and courts, would do well to look closely at her approach. 141

141 An example would be the thorny comparator group problem involving seniority accrual for employees who are not working due to disabilities that has bedevilled labour arbitrators in Ontario Nurses Assn. v. Orillia Soldiers Memorial Hospital, [1999] OJ. No. 44, 42 O.R. (3d) 692 (Ont. C.A.).

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[3] Personal Delegations Alexander A Boni-Saenz' INTRODUCTION

Donald and Gloria Luster married on October 5, 1963 and had four children. Donald retired in 2005, and it was about this time when Jeannine Childree, his youngest daughter and a registered nurse, noticed that he was exhibiting signs of dementia.' After a number of consultations with doctors, Donald was officially diagnosed with Alzheimer's disease in 2009 due to his memory loss, disorientation, and other cognitive impairments.' Based on these medical evaluations, a Connecticut probate court declared Donald incapable of handling his personal or financial affairs and appointed Jeannine and his other daughter, Jennifer Dearborn, as his guardians! Shortly thereafter, Gloria filed for a legal separation from Donald, and in response, the daughters counterclaimed for divorce, suspecting their mother of financial and emotional abuse. 5 Should the guardian-daughters have the authority to sue for divorce on behalf of their father?e 1

Assistant Professor of Law, Chicago-Kent College of Law. J.D. Harvard Law School, M.Sc. London School of Economics, A.B. Harvard College. [email protected]. For helpful suggestions and comments, I would like to thank Daniel Abebe, Douglas Baird, Anya Bernstein, Christopher Buccafusco, Emily Buss, Mary Anne Case, Anthony Casey, Jack Chin, Richard Epstein, Lee Fennell, Roger Ford, Bernard Harcourt, Dick Helmholz, Todd Henderson, Mark Heyrman, William Hubbard, Aziz Huq, Brian Leiter, Saul Levmore, Jonathan Masur, Martha Minow, Jennifer Nou, Martha Nussbaum, Dave Owen, John Portmann, Eric Posner, Todd Rakoff, Greg Reilly, Andres Sawicki, Naomi Schoenbaum, Victoria Schwartz, Julia Simon-Kerr, Robert Sitkoff, Michael Stein, Lior Strahilevitz, Robin West, the editors at the Brooklyn Law Review, and workshop participants at Chicago-Kent, DePaul, Loyola-Los Angeles, Seattle University, Temple, University of California-Davis, University of Chicago, University of Connecticut, University of Maine, University of Wisconsin, and the 2013 Law and Society Association Annual Meeting, where I presented earlier versions of this article. This article was funded by a generous grant from the Skadden Fellowship Foundation. 1 See Luster v. Luster, No. FA094010779S, 2011 LEXIS 1844, at *3-4 (Conn. Super. July 20, 2011). 2 See id. at *6-7. See id. at *8, *10. See id. at *11. See id. at *1. There was in fact evidence that Gloria had dissipated marital assets, using a durable power of attorney that may have been signed after Donald lost capacity. See id. at *11-17. There was also some evidence of emotional abuse. See id. at

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In 2000, Joe Thomas Garrett died after a bout with lung cancer.' About a week before he died, he signed a durable power of attorney and approved a will.' The power of attorney designated Joe's brother, Larry, as attorney-in-fact, and the will poured Joe's assets into a trust bearing Joe's name. Its trustees were Carolynne (Joe's wife), and Larry, and its assets would be distributed at Caroylnne's death, with only 2 percent going to one of Joe's daughters, Joni Hart_!' Although Joni had only seen her father a handful of times since 1969, she challenged the will on several grounds, including that Joe lacked the mental capacity to execute it and that it was invalid because it was actually executed by Larry." Assuming Joe lacked decisional capacity, should Larry have the authority to execute a will on his brother's behalf? These types of questions are more familiar in the health-care context, where the legal system has publicly grappled with the difficulties of delegating the decision to 9

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''9 ("The defendant [Donald] reported that the plaintiff would ask him 'why are you still alive[.]"'); id. at *9 ("The defendant was extremely frightened of the plaintiff [Gloria] and felt unsafe in his own home."). " Gloria moved to dismiss the daughters' counterclaim, contending that guardians' powers are limited and that allowing guardians the power to divorce would allow them to "bring dissolution of another's marriage for a myriad of reasons including financial gain or personal animosity." See Luster v. Luster, 17 A.3d 1068, 1075 (Conn. App. Ct. 2011). Judge Klaczak of the superior court agreed, noting that the majority rule prohibited guardians from filing for divorce for their wards, as this was an "intensely personal" decision and that there was an "inherent inability to know" what Donald would have wanted in this situation. See Luster, 2010 Conn. Super. 63, at *1-2. The appeals court reversed, focusing on the need for the representation of Donald's interests in court and the problem of leaving potentially abusive situations unaddressed. See Luster, 17 A.3d at 1077-78. Gloria appealed, and the Supreme Court of Connecticut granted certiorari on the question, but later dismissed the case for failure to file a brief. See Luster v. Luster, 23 A. 3d 1243 (Conn. 2011); Luster v. Luster, SC 18820 (Conn. Apr. 13, 2012) (mem. dismissal). For a summary of the law in other states, see infra Part I.B.3. 7 See In re Estate of Garrett, 100 S.W.3d 72, 73-74 (Ark. Ct. App. 2003). See id. at 74. Id. at 73-74. 10 See id. I d. at 74-76. 12 The court's answer was no. See id. at 76 ("Under a power of attorney, an agent is authorized to act with respect to any and all matters on behalf of the principal with the exception of those which, by their nature, by public policy, or by contract require personal performance. The decision of who, what, when, and how one's property is to be distributed upon death is clearly personal and that of the principal alone, and thus falls within the exception." (citations and internal quotation marks omitted)). The court, however, found that the will was validly executed by Joe himself and upheld it. See id. ("Larry merely acted as a conduit or messenger between the decedent and Neihouse [the attorney] concerning the decedent's wishes because the decedent was ill and unable to leave the hospital.").

LEXIS

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withdraw life-sustaining treatment from individuals such as Karen Ann Quinlan, Nancy Cruzan/ and Terri Schiavo. Cases like these illustrate the important question of proxy decision-making on personal matters, yet courts and legislatures are divided on whether and how to delegate personal decisionmaking authority for individuals who suffer from cognitive impairment. Nevertheless, this question's importance in the United States is unlikely to subside anytime soon. Millions of people lack decisional capacity due to illness or accident, and these numbers will only increase with an aging population. Further, the traditional lines of decision-making authority have broken down as family and caregiving structures have changed. Thus, society will face more and more scenarios in which people with cognitive impairments may require support or a proxy in making crucial life decisions. While this reality presents many difficult questions, it also creates an opportunity to rethink and reevaluate how the law treats people with cognitive impairments. 18 The central claim of this article is that in the case of decisional incapacity, decisions that implicate fundamental human capabilities should generally be delegable. Thus, it rejects the rationale employed by courts to justify nondelegation-that these types of decisions are too personal to be made by another. This line of reasoning confuses nondelegation for nondecision, and it only serves to privilege a status quo outcome over the expression of fundamental human capabilities by individuals with cognitive impairments. The primary normative framework that guides the analysis is the 1 '

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See In re Quinlan, 355 A.2d 647 (N.J. 1976). See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990). 15 See In re Schiavo, 780 So. 2d 176 (Fla. Dist. Ct. App. 2001). 16 See Liesi E. Hebert et al., Alzheirner Disease in the US Population: Prevalence Estimates Using the 2000 Census, 60 ARCHIVES OF NEUROLOGY 1119, 1120 (2003) (estimating there are 4.5 million people in the United States with Alzheimer's disease and projecting that this number will increase to 13.2 million by 2050). 17 See ELAINE M. BRODY, WOMEN IN THE MIDDLE: THEIR PARENT CARE YEARS 722 (2d ed. 2004) (describing changing family structures); David T. Ellwood & Christopher Jencks, The Spread of Single-Parent Families in the United States Since 1960, in THE FuTURE OF THE FAMILY 30-37, 49-52 (Daniel P. Moynihan eta!. eds., 2004) (same). 18 These issues are not unique to the United States. Other countries also grapple with how to treat certain types of decisions in the case of decisional incapacity. See BDRGERLICHES GESETZBUCH BGB (CIVIL CODE) §§ 1903-07 (delineating delegation or nondelegation of authority for decisions about marriage, willmaking, sterilization, and residence for those under custodianship in Germany). 13

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capabilities approach." It posits that capabilities, or the freedoms or opportunities to achieve certain core functionings, are the relevant metric for social justice. Access to the capabilities that we consider fundamental to the human experience, such as the capability to live a life that is not arbitrarily cut short or the capability to have social affiliations, must be provided on an adequate basis to all, including those with cognitive impairment. Thus, most individuals who lack decisional capacity should be free to exercise their fundamental capabilities through, or with the assistance of, a surrogate. One need not adhere to the capabilities approach, however, to support some range of personal delegations. This article also explores other normative arguments-including autonomy and alternative conceptions of welfare-that might justify different types of personal delegation regimes. As a practical matter, this means that various personal decisions, such as those involving divorce, estate planning, or health care, should be delegable to surrogates in the event of decisional incapacity. This delegation may be achieved either through a springing durable power of attorney that specifically delegates each of these decisions or through the guardianship process. Oversight of attorneys-in-fact should be limited, while advance judicial approval should be required for guardians who have cognizable conflicts of interest or who are exercising decision-making authority in a way that implies a likely conflict of interest. However, since the court may lack the institutional competence to review many of these personal decisions, its review should be deferential. In the end, ensuring equal access to such personal decisions through delegation is a crucial form of empowerment that promotes the flourishing of those living with cognitive impairment. This article proceeds in three parts. Part I provides the background for understanding the field of personal delegations. It reviews the mechanisms of personal delegation and surveys the legal treatment of divorce, willmaking, and health care-the three areas in which these questions have been most subject to legal contestation. Part II argues for a rule that decisions that implicate fundamental human capabilities should generally be delegable. It then considers other normative arguments derived from the traditional legal standards for surrogate decision19 See generally MARTHA C. NUSSBAUM, CREATING CAPABILITIES (2011): AMARTYA SEN, COMMODITIES AND CAPABILITIES (1985).

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making: substituted judgment and best interests. Part II also addresses objections based on the notion that certain decisions are too personal to be delegated to another. Part III examines how personal delegations would work in practice by discussing durable powers of attorney and guardianship, and it then briefly reexamines the areas of divorce, wills, and health care. I.

PERSONAL DELEGATIONS

Personal delegations are transfers of authority over personal decisions to others.'° For the purposes of this article, I define personal decisions as those that allow us to exercise our fundamental human capabilities in meaningful ways.' Examples include the decisions to marry," vote,'' or travel.' Many of these 1

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20 See BLACK'S LAW DICTIONARY 491 (9th ed. 2009) (defining delegation as "[t]he act of entrusting another with authority or empowering another to act as an agent or representative"). 21 This definition clearly links up with the primary normative theory I employ for much of my analysis: the capabilities approach. In Part II.B, I explore alternative normative arguments and vary the definition of a personal decision accordingly. While there is not a one-to-one match between the different normative theories, and thus their definitions, there is at least some overlapping consensus as to what would constitute a personal decision. See generally John Rawls, The Idea of' an Overlapping Consensus, 7 OXFORD J. LEGAL STUD. 1 (1987) (applying the concept to political justice). I draw on Martha Nussbaum's work to generate a list of fundamental human capabilities. See MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 72-78 (2000) [hereinafter NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT]; see also MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 69-81 (2006) [hereinafter NUSSBAUM, FRONTIERS] (outlining ten core capabilities-life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and control over one's environment (political and material)). While one might disagree with elements on her list, the specific decisions analyzed in this article are connected to capabilities that most would likely consider fundamental. See inf'ra Part I.B (connecting health care, divorce, and testamentary decisions to fundamental capabilities that are relatively uncontroversiai). 22 See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (stating that prior cases characterize the right to marry as "among the personal decisions protected by the right of privacy"). The term privacy, of course, has been strained to encompass a variety of different interests that it supposedly protects. See generally Martha C. Nussbaum, Sex Equality, Liberty, and Privacy: A Comparative Approach to the Feminist Critique, in INDIA'S LJVJNG CONSTJTUTJON: IDEAS, PHACTJCES, CONTHOVEHSJES 242 (Zoya Hasan et al. eds., 2002). " See U.S. CONST. amend. XXVI, § 1 ("The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."); id. amend. XIX ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."); id. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.").

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types of decisions receive special protection through various constitutional mechanisms." This article examines personal delegations made in the context of decisional incapacity, or the inability to make a specific type of decision entirely on one's own due to cognitive impairment." In particular, this article focuses on those who once possessed decisional capacity but have since lost it, whether due to illness or accident. 27 This part reviews the legal architecture of delegations in the event of decisional incapacity. With that basis, it then turns to the legal treatment of personal delegations in three illustrative areas-divorce, willmaking, and health care." While personal delegations potentially encompass a much broader set of decisions, the law is most in flux and thus open to contestation and litigation in these areas. In the first two domains, personal decisions have historically been nondelegable. The rationale for nondelegation is the personal nature of the decision, which is analyzed further in Part II. 24 See United States v. Guest, 383 U.S. 745, 757 (1966) ("The constitutional right to travel from one State to another ... occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized."'); Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (including among the fundamental rights of citizens the "right of a citizen of one state to pass through, or to reside in any other state"). 25 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."); Martha C. Nussbaum, Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 56-72 (2007) (demonstrating how the U.S. Constitution actualizes many rights that contribute to various important capabilities). 26 See ALLEN E. BUCHANAN & DAN W. BROCK, DECIDING FOR OTHERS 18 (1990) ("The statement that a particular individual is (or is not) competent is incomplete. Competence is always competence for some task-competence to do something .... [T]he notion of decision-making capacity is itself incomplete until the nature of the choice as well as the conditions under which it is to be made are specified. Thus competence is decision-relative, not global."). Because those who currently lack capacity could theoretically regain it, the delegations at issue are also revocable. 27 This excludes, for the moment, two populations: children and those who never possessed decisional capacity. 28 Other scholars have examined nondelegation in the areas of wills and divorce in isolation, but none have attempted to understand or theorize the field of personal delegations as a whole. See, e.g., Mark Schwarz, Note, The Marriage Trap: How Guardianship Divorce Bans Abet Spousal Abuse, 13 J.L. & FAM. STUD. 187, 196 (2011) (discussing lack of delegation in divorce cases); Ralph C. Brashier, Policy, Perspective, and the Proxy Will, 61 S.C. L. REV. 63, 102 (2009) (discussing state statutory delegation powers over wills); Diane Snow Mills, Comment, "But I Love What's-HisName": Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. AM. ACAD. MATRIMONIAL LAW. 527, 535-36 (2000); Kurt X. Metzmeier, Note, The Power of the Incompetent Adult to Petition for Divorce Through a Guardian or Next Friend, 33 U. LOUISVILLEJ. FAM. L. 949, 957-58 (1994).

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The Legal Architecture of Delegation

The three primary legal mechanisms that govern the delegation of decisions in the event of decisional incapacity are the durable power of attorney, statutory surrogacy, and guardianship." For those who plan in advance, the durable power of attorney permits the delegation of decision-making authority past the point of incapacity." Originally used for delegation of financial decisionmaking, its use has now spread beyond the economic realm to the health-care arena, as all states now have statutes addressing the health-care power of attorney or its equivalent." For those who did not plan in advance, the law provides for delegation through statutory surrogacy and guardianship." The former represents the norm in the health-care domain; these statutes automatically empower surrogates when there is a finding, typically by a physician, that a patient lacks decisional capacity. They contain hierarchical lists of potential surrogates, starting with the spouse and proceeding to more distant familial relations." These statutory schemes have an advantage 29 There are, of course, informal or nonlegal delegations of personal decisionmaking authority as well. See Marshall B. Kapp, Who's the Parent Here? The Family's Impact on the Autonomy of Older Persons, 41 EMORY L. J. 773, 773-78 (1992) (outlining the domains in which the family/individual interaction plays out). For example, many caregivers for those with cognitive impairments must make proxy decisions about various personal activities of daily living, such as bathing, dressing, and eating. See S. Katz et a!., Studies of Illness in the Aged: The Index of ADL, 185 JAMA 94, 94-99 (1964) (listing activities of daily living); see also I. Rosow & N. Breslau, A Guttman Health Scale for the Aged, 21 J. GERONTOLOGY 556, 556-59 (1966) (describing instrumental activities of daily living). Sometimes these decisions are codified as delegable in state statutes, but they are so uncontroversial that they almost never come up in legal cases. See FLA. STAT. ANN. § 744.3215 (West 2006) (delegating decisions about social environment to guardians). The primary allocation mechanisms for this type of labor and corresponding personal decision-making authority are gender and familial status. While these allocation mechanisms must be interrogated, to do so is outside the scope of this article. 30 The durable power of attorney is a relatively new phenomenon, having been created in the 1950s to remedy the problem that at common law, incapacity of a principal extinguished an agency relationship. See Carolyn L. Dessin, Acting as an Agent Under a Financial Durable Power of Attorney: An Unscripted Role, 75 NEB. L. REV. 574, 576-78 (1996); see also Alexander M. Meiklejohn, Incompetent Principals, Competent Third Parties, and the Law Agency, 61 IND. L.J. 115, 119-23 (1986) (detailing how courts dealt with the durable power of attorney in the context of economic transactions). " See Dorothy D. Nachman, Living Wills: Is It Time to Pull the Plug?, 18 ELDER L.J. 289, 316 (2011). 32 See LAWRENCE A. FROLIK, THE LAW OF LATER-LIFE HEALTH CARE AND DECISION MAKING 171-75,221-25 (2006). 33 See, e.g., ARK. CODE ANN. § 20-17-214 (2012); LA. REV. STAT. ANN. § 40:1299.58.5 (2012); MD. CODE ANN., HEALTH-GEN.§ 5-605 (West 2008); TEX. HEALTH & SAFETY CODE ANN. § 166.039 (West 2010); VA. CODE ANN. § 54.1-2986 (2012). These

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over the guardianship process in that they quickly select a decision-maker. A statutory scheme, however, requires an institution, legal or nonlegal, to execute it. These statutes have been employed in the health-care context primarily because the medical profession and health-care institutions exist to serve in this role.' There is typically no judicial oversight of statutory surrogates' decision-making. Finally, there is guardianship. When someone petitions the court to place a person under guardianship, the court holds a hearing to determine whether that person truly lacks capacity. If so, the court determines what type of guardianship would be appropriate given the ward's decisional and functional limitations, and who should serve as guardian." Most states provide statutory guidelines for the selection of guardians, which 4

statutes are modeled after the Uniform Health-Care Decisions Act or one of its predecessor model statutes. The various state statutes' priority lists do a reasonably good job of reflecting patient preferences. See Nina A. Kahn & Jeremy A. Blumenthal, Designating Health Care Decisionmakers for Patients Without Advance Directives: A Psychological Critique, 42 GA. L. REV. 979, 1007 (2008). 34 See generally Matthew K. Wynia eta!., Medical Professionalism in Society, 341 NEW ENG. J. MED. 1612 (1999). The state's authority to do this derives from the doctrine of parens patriae-the state's power to take care of those in society who cannot take care of themselves. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982) ("Parens patriae means literally 'parent of the country.' The parens patriae action has its roots in the common-law concept of the 'royal prerogative.' The royal prerogative included the right or responsibility to take care of persons who 'are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property."' (footnotes omitted) (quoting, among others, J. CHITTY, PREROGATIVES OF THE CROWN 155 (1820))). For parens patriae's origins in English common law, see generally Lawrence B. Custer, The Origins of the Doctrine of Parens Patriae, 27 EMORY L.J. 195 (1978). For a critique of the doctrine, see George B. Curtis, The Checkered Career of Parens Patriae; The State as Parent or Tyrant?, 25 DEPAUL L. REV. 895, 914-15 (1976) ("Unchecked, however, this power will lead to total intrusion by the state into the personal lives of its members."). In Roman law and English common law, the state delegated financial but not personal decisions to the guardian of the ward. See Barbara A. Venesy, Comment, 1990 Guardianship Law Safeguards Personal Rights yet Protects Vulnerable Elderly, 24 AKRON L. REV. 161, 163 (1990). Modern guardianship law allows guardians to make personal as well as financial decisions for a ward, and the court has the option of creating one of four types of guardianship: guardianship of the person (granting authority over personal decisions), guardianship of the estate (financial decisions), plenary guardianship (both types of decisions), and limited guardianship (both types of decisions, as tailored to the specific decisional incapacities of the ward). See LAWRENCE A. FROLIK, THE LAW OF LATER-LIFE HEALTH CARE AND DECISION MAKING 165-81 (2006) (explaining the different types of guardianship). The terminology varies by state, with some using the term conservator for guardians of the estate or plenary guardians. The alternative of limited guardianship has unfortunately not been popular among judges. See Lawrence A. Frolik, Promoting Judicial Acceptance and Use of Limited Guardianship, 31 STETSON L. REV. 735, 752 (2002).

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include a rebuttable list of preferred guardians, similar m structure to the lists used to determine statutory surrogates. 37

B.

Three Illustrative Areas

This part examines the three illustrative examples of personal delegations law-divorce, willmaking, and health care. Each has its own claim to being personal, but delegations in these areas are currently treated quite differently, with decisions being readily delegable for health care but much more controversial for willmaking and divorce. 1. Divorce

Marriage is a fundamental social and, more recently, legal relation." Therefore, the decisions to enter into marriage or exit from it through divorce implicate the fundamental human capabilities associated with affiliation." As social beings, we make a variety of choices about who to affiliate with (or who to cease affiliating with), and our identities are generated in part through these affiliations. The marital relation is not the only important type of personal affiliation, but it is perhaps the most prominent. While the Supreme Court has recognized a fundamental right to marry, it has never explicitly recognized a fundamental 10

3; See, e.g., ARIZ. REV. STAT. ANN. § 14-5311(B) (2012) (using a hierarchical list); but see ARK. CODE ANN. § 28-65-204 (2012) (employing a more holistic analysis). Courts typically inquire into who might be best to serve and prefer to appoint family members. See MARY JOY QUINN, GUARDIANSHIPS OF ADULTS: ACHIEVING JUSTICE, AUTONOMY, AND SAFETY 73 (2005) (noting that nearly 70 percent of guardians are family members, with adult daughters most likely to fill the role). If no family member is willing or able to serve, or if there is bad blood between family members, then the court may appoint a professional guardian or public guardian. See Pamela B. Teaster, Erica F. Wood, Susan A. Lawrence & Winsor C. Schmidt, Wards of the State: A National Study of Public Guardianship, 37 STETSON L. REV. 193, 240-41 (2007); Alison Barnes, The Virtues of Corporate and Professional Guardians, 31 STETSON L. REV. 941, 945-46 (2002). Professional guardians are typically subject to certification or screening requirements to ensure quality services. See, e.g., FLA. STAT. ANN. § 744.1083 (West 2009) (requiring credit and criminal background checks); TEX PROB. CODE § 697 (West 2009) (requiring letters of reference and professional certification). "' See Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1765-66 (2005). :39 See NUSSBAUM, FRONTIERS, supra note 21, at 77 ('"7. Affiliation. A. Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; .... (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation .... )"). 40 See Loving v. Virginia, 388 U.S. 1, 12 (1967) (characterizing marriage as "fundamental to our very existence and survival").

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right to divorce!' Regardless of its constitutional status, however, when considered in the context of guardian decisionmaking, courts have been quick to paint the right as personal, deeming it nondelegable. The cases in which this issue appears share similar fact patterns: guardians file for divorce on behalf of their wards and allege wrongdoing on the part of the spouse with capacity." These cases arise because states do not spell out the delegability of personal decisions, such as divorce, in their guardianship statutes." This lack of guidance leaves it to the courts to determine whether the right to divorce should be implied in the general grants of authority that are given to guardians. The majority rule is that a guardian may not 41 See Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. REV. 1669, 1673 n.23 (2011). Courts, however, have sometimes assumed that it is implied in the right to marry, as have legal scholars. See, e.g., Murillo v. Bambrick, 681 F.2d 898, 904 (3d Cir. 1982); J. Harvie Wilkinson & G. Edward White, Constitutional Protection for Personal Lifestyles, 62 CORNELL L. REV. 563, 57 4-75 (1977). 4 See, e.g., Bradford v. Abend, 89 Ill. 78, 78-79 (1878) (wife succumbed to ' mental and physical sickness due to "cruelty and neglect" on the part of her husband, who later abandoned her); Cowan v. Cowan, 1 N.E. 152, 152 (Mass. 1885) (husband abandoned wife after six weeks and did not contribute to her support, despite being spotted in adjoining towns). Sometimes, however, it is the wife who is accused of wrongdoing. See In re Marriage of Drews, 503 N.E.2d 339, 340 (Ill. 1986) (wife abandoned husband to his parents' care after he suffered a "severe and disabling head injury as a consequence of an automobile accident"); Mohler v. Estate of Anthony Shank, 61 N.W. 981, 982 (Iowa 1895) (wife committed adultery and birthed a "bastard child," son of the man she married after Shank's death). Sometimes there is a financial consideration, such as the desire to prevent the spouse with capacity from claiming an interest in marital property. See Cowan, 1 N.E. at 152 (noting an argument in favor of divorce "that her husband might thus be prevented from interfering with or ultimately sharing in her [considerable] property" that she "inherited from her father nearly seven years after the desertion began."). Other times a financial interest is imputed to the parties by the court. See In re Jennings, 453 A.2d 572, 574-75 (N.J. Super. Ct. Ch. Div. 1981) (denying the right to divorce by proxy and noting that the case would merely be a proxy battle over inheritance). 13 When states have specifically codified the power of guardians to divorce their wards, the answer is clear, and courts have enforced this power. See Vaughan v. Guardianship of Vaughan, 648 So. 2d 193, 195-96 (Fla. Dist. Ct. App. 1994) (interpreting FLA. STAT. § 744.3215(4)(c) to allow the initiation of a dissolution action by a guardian); Garnett v. Garnett, 114 Mass. 379, 379-80 (Mass. 1874) (enforcing statutory grant of authority to guardian or next friend to pursue divorce action); Denny v. Denny, 90 Mass. (1 Allen) 311, 313-14 (1864) (same). In other states, there is no clear statutory codification, but there are relevant provisions in either the guardianship or divorce statutes that clearly imply such a power. See Houghton v. Keller, 662 N.W.2d 854, 855-56 (Mich. Ct. App. 2003) (jointly interpreting guardianship and divorce statutes as permitting suit for divorce by a guardian); Johnson v. Johnson, 811 S.W.2d 822, 825-26 (Mo. Ct. App. 1991) (acknowledging the right of the guardian son to pursue a divorce); but see Brockman v. Young, No. 2010-CA-001354-MR, 2011 Ky. App. Unpub. LEXIS 834, at *3-4 (Ky. Ct. App. Nov. 10, 2011) (refusing to read the statute mentioning the possibility of an incapacitated person prosecuting a divorce action as implying the right to do so).

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pursue a divorce action. In fact, many states accept the argument that the decision to divorce is "strictly personal" in nature and thus cannot be delegated to another." Some states 44

44 This rule is exemplified by the case of Worthy v. Worthy, 36 Ga. 45 (1867). Mary A. Worthy married her husband, Leonard Worthy, in 1858. Id. at 45. By late 1865, she was "insane," and Leonard sent her to a lunatic's asylum near Milledgeville in central Georgia. Id. at 45-46. While she was confined in the asylum, her father, Nathan Res pass, filed for divorce on her behalf, alleging that Leonard had committed adultery numerous times while she was away. Id. The court refused to see "the right to sue for a divorce in any other light than as strictly personal to the party aggrieved." Id. at 46-4 7 (emphasis omitted). Even though Mr. Respass's "feelings and delicacy may have been outraged," no one could know if Mary felt the same way. I d. at 4 7. Further, the court argued, the law provided a remedy in the form of punishment for adultery, and "[d]eath only can dissolve the marriage relation without her consent." Id. (emphasis omitted). Many other states have accepted the majority rule. See Cox v. Armstrong, 221 P.2d 371, 373 (Colo. 1950) (recognizing rule); Freeman v. Freeman, 237 S.E.2d 857, 859 (N.C. Ct. App. 1977) ("The majority rule that a suit for divorce is so personal and volitional that it cannot be maintained by a guardian on behalf of an incompetent is sound."); Murray ex rel. Murray v. Murray, 426 S.E.2d 781, 784 (S.C. 1993) ("We adopt the majority rule in the case of a spouse who is mentally incompetent as to his property and his person, and hold that he may not bring an action for divorce either on his own behalf or through a guardian."); Mills, supra. note 20, at 535-37 (2000) (acknowledging this majority rule but also a minority trend toward allowing such actions). In determining whether the guardian has such authority, courts are careful to note whether the guardianship implies a lack of decisional capacity with respect to the divorce decision, as guardianship over the estate does not necessarily imply the inability to make a decision about a personal matter like divorce. See In re Marriage of Higgason, 516 P.2d 289, 294-95 (Cal. 1973) (noting that a person under guardianship may still exercise judgment and the wish to get divorced, which would be instituted through a guardian ad litem); Schuck v. Myers, 43 Cal. Rptr. 215, (Cal. Ct. App. 1965) (noting that the appointment of a conservator does not per se create a judgment that the person is insane or incompetent in a broader sense); In re Marriage of Kutchins, 482 N.E.2d 1005, 1007-08 (Ill. App. Ct. 1985) (preserving the right of the ward to make personal decisions, even if under a guardianship of the estate, if the ward is able to express a desire to dissolve the marriage); Boyd v. Edwards, 446 N.E.2d 1151, 1158 (Ohio Ct. App. 1982) (noting that the mentally ill can still marry even if under guardianship); State ex rel. Robedeaux v. Johnson, 418 P.2d 337, 340 (Okla. 1966) (noting that the purposes of a guardianship of the estate is to look after financial matters, not personal decisions such as divorce); Scoufos v. Fuller, 280 P.2d 720, 724 (Okla. 1954) (comparing the capacity to divorce to testamentary capacity, and describing how neither is necessarily extinguished by a general finding of incompetence); Murray, 426 S.E.2d at 784 (preserving the right of the ward to make personal decisions, even if under a guardianship of the estate, if the ward "is able to express unequivocally a desire to dissolve the marriage"); Syno v. Syno, 594 A.2d 307, 311 (Pa. Super. Ct. 1991) (same). 45 See Iago v. Iago, 48 N.E. 30, 31 (Ill. 1897) (defining the right to divorce as a personal right that requires intelligent action by the ward); State ex rel. Quear v. Madison Circuit Court, 229 Ind. 503, 506 (1951) (claiming that the insane cannot consent to the filing of a complaint); Birdzell v. Birdzell, 33 Kan. 433, 435 (1885) (noting that marriage is a "a personal status and relation assumed for the joint lives of the parties" that cannot be dissolved without "free and voluntary consent of the parties"); Johnson v. Johnson, 170 S.W.2d 889, 889 (Ky. 1943) (concluding that divorce is "so strictly personal and volitional" that it cannot be maintained, even if this leaves wards as un-divorceable); In re Babushkin, 29 N.Y.S.2d 162, 163-64 (Sup. Ct. 1941) (putting the decision to divorce "wholly at the volition" of the ward); Freeman, 237

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have analogized the guardian-ward relationship to the parentchild relationship, noting that, in that context, parents have no power to divorce on their child's behalf.' Others have acknowledged a public policy of safeguarding marriage, which they interpret as continuing marriage in light of the possible threats of divorce." The minority trend is to allow guardians to divorce their wards/8 although the rationales in support of this rule vary. Some courts compare the decision to divorce to other decisions that are already deemed delegable or treat divorce like any other civil action." Alternatively, other courts focus on the ward's experience, proclaiming a judicial duty to protect the ward from abuse 51 or taking note of evidence of the incapacitated 6

49

S.E.2d at 859; Shenk v. Shenk, 135 N.E.2d 436, 438 (Ohio Ct. App. 1954) (noting that a guardian cannot know "the real will and decision" of a ward, as that is "personal"). 46 See Phillips v. Phillips, 45 S.E.2d 621, 623 (Ga. 1947) ("While under our statutes the power of such a guardian over the person of his ward is the same as that of a father over his child, yet even a father cannot make decisions for his child as to questions of marriage and divorce."); Mohler v. Estate of Shank, 61 N.W. 981, 983 (Iowa 1895) ("No guardian or parent or next friend can, by any means known to the law, effectuate a marriage between his ward or child and another .... And it appears to us that a guardian of an insane person has no more right to maintain an action to dissolve the marriage relation of his ward than he has to manage and control his will in the matter of entering into the relation."). 47 See Mohrmann v. Kob, 51 N.E.2d 921, 923-24 (N.Y. 1943) ("The State has a vital interest in the preservation of the marriage status-an interest which the Legislature has guarded jealously by the enactment of those statutes which govern divorce."). 48 The case of Ruvalcaba v. Ruvalcaba presents such a scenario. 850 P.2d 67 4 (Ariz. Ct. App. 1993). Peggy and Francisco Ruvalcaba were married in 1979 and had a child in 1984. Id. at 676. In 1989, Peggy suffered a traumatic head injury after falling off of a horse. I d. She was in a coma for several months, and when she emerged from it, she had several cognitive difficulties, which led to the appointment of her mother, Betty Stubblefield, as her guardian. Id. Betty filed a petition for divorce as well as a restraining order against Francisco, alleging that he had physically abused Peggy on several occasions, had threatened Betty, and had said that he would abscond to Mexico with their child if Betty filed for divorce on behalf of Peggy. I d. at 676-77. The trial court dismissed the petition, but the appeals court reversed. I d. at 677. In its opinion, the court noted the breadth of guardian powers, compared the divorce action to medical decision-making (noting that the latter was delegable), and warned of the possibilities of abuse if the divorce decision were not delegable. I d. at 683-84. 49 See Karbin v. Karbin, 977 N.E.2d 154, 157-58, 162 (Ill. 2012) ("With the concept of 'injury' removed from divorce in Illinois, it is difficult for us to accept the view that the decision to divorce is qualitatively different from any other deeply personal decision, such as the decision to refuse life-support treatment or the decision to undergo involuntary sterilization."). 50 See Luster v. Luster, 17 A.3d 1068, 1078-79 (Conn. App. Ct. 2011); In re Marriage of Ballard & Ballard, 762 P.2d 1051, 1052 (Or. Ct. App. 1988) (allowing divorce through a guardian ad litem); Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575, 575 (Tex. 1988) (per curiam) (same); In re Marriage of Gannon, 702 P.2d 465, 467 (Wash. 1985). 51 See Campbell v. Campbell, 5 So. 2d 401, 402 (Ala. 1941) ("The court has ample power to protect the interest of the incompetent complainant, and the equity of

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person's desire for divorce prior to incapacity." Regardless of the rationale employed, the trend toward delegability is likely part of a more general trend toward no-fault divorce." The presumption that marriage would continue indefinitely, even possibly in the presence of extensive abuse, was given force through several legal barriers to initiating and succeeding in a divorce action. 51 But with the institution of no-fault divorce in all fifty states in 2010,5 '' one generally need not have a reason for divorcing and may do so under one of the catchall grounds such as irreconcilable differences or irremediable breakdown." This trend has served to remove the fault system as a barrier to divorce in general, with likely spillover effects into guardian divorce. 2. Wills

The will is an instrument that serves multiple functions. It disposes of property," expresses the testator's wishes," and the bill must be determined on its averments, independent of the state of the complainant's mind as if he were suing of his own volition."); Kronberg v. Kronberg, 623 A.2d 806, 810 (N.J. Super. Ct. Ch. Div. 1993); McRae v. McRae, 250 N.Y.S.2d 778, 780-81 (Sup. Ct. 1964) ("It cannot be presumed that the Legislature intended to leave an insane spouse completely at the mercy of the other party to the marriage contract, who might then with impunity disregard marital obligations or successfully assert marital rights lost by misconduct."); Carver Estate, 5 Pa. D. & C.3d 743, 754-55 (C.P., Orphans' Ct. Div. 1977) (noting that access to the courts to procure or apply for divorce is guaranteed by the Due Process Clause). 52 See Nelson v. Nelson, 878 P.2d 335, 339, 341 (N.M. Ct. App. 1994) (recognizing the ward's desire to end her marriage prior to incapacity as a factor in finding there is "no public policy or equitable justification for barring the ward's guardian from bringing an action for divorce on behalf of the ward"). 53 The recent case of Karbin v. Karbin explicitly employs this logic, noting that its previous rule barring guardian divorce took root in Illinois in the earlier case of In re Marriage of Drews, which was governed by the fault regime. See Karbin, 977 N.E.2d at 162 (noting how the policy objectives of the divorce regime as a whole had changed). 54 See Elizabeth S. Scott, Rehabilitating Liberalism in Modern Divorce Law, 1994 UTAH L. REV. 687, 702 (1994) ("Traditional marriage, supported by a legal rule that allowed divorce only for grievous offense, was a relationship that involved a lifelong commitment between spouses and a status with legal attributes independent of the parties' preferences.") (footnote omitted). For instance, some demonstration of fault, such as abandonment, cruelty, or adultery, on behalf of one of the parties was necessary. See Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1387-88 (2000). In addition, there were several defenses to divorce claims, such as condonation or recrimination. See Lawrence M. Friedman, A Dead Language: Divorce Law and Practice Before No-Fault, 86 VA. L. REV. 1497, 1508 (2000). 55 See Joslin, supra note 41, at 1676 n.41, 1704. New York passed no-fault divorce in 2010. 2010 N.Y. Laws ch. 384, § 1 (Aug. 13, 2010); see also Paterson Signs No-Fault Divorce Bill, N.Y. TIMES, Aug. 16, 2010, at A14. 56 See MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 188-89 (1989). 57 The Supreme Court has indicated that disposal of property after death implicates one of the fundamental sticks in the bundle of property rights-to pass on

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represents the final statement of the testator's social relationships." The act of making a will is thus a personal decision because it relates to multiple fundamental human capabilities, including the capabilities to have control over one's property, expression, and affiliation. Courts and legislatures have generally designated willmaking as nondelegable, viewing that decision as too personal to be made by another." Before 1998, the Uniform Probate Code (UPC) permitted delegations of almost every financial decision-making task to guardians, with the exception of willmaking. 62 Various states incorporated this language into 60

one's bounty to those one deems worthy. See Hodel v. Irving, 481 U.S. 704, 716 (1987) ("In one form or another, the right to pass on property-to one's family in particularhas been part of the Anglo-American legal system since feudal times."). 58 See David Horton, Testation and Speech, 101 GEO. L.J. 61, 61 (2012) (noting the ways in which wills and trusts are "speech acts"). 59 See Deborah S. Gordon, Reflecting on the Language of Death, 34 SEATTLE U. L. REV. 379, 384 (2011) (arguing that "encouraging a testator to express herself in her will can strengthen the testator's connection to her personal identity and her community, an important step in furthering the ultimate goal of having her property pass as she intends and desires."). 60 See NUSSBAUM, FRONTIERS, supra note 21, at 76-77 ("4. Senses, Imagination, Thought . ... Being able to use one's own mind in ways protected by guarantees of freedom of expression .... 7. Affiliation. A. Being able to live with and toward others .... 10. Control over One's Environment . ... B. Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others[.]"). 61 See, e.g., In re Estate of Nagle, 317 N.E.2d 242, 245 (Ohio Ct. App. 1974) ("It is an inalienable right of a testator to make a will and, as long as it is not unlawful and the testator is competent, it is an abuse of discretion to alter his will."); In re Estate ofRunals, 328 N.Y.S.2d 966, 976 (Sur. Ct. 1972) (noting that "the right to make a will is personal to a decedent. It is not alienable or descendable. It dies with the decedent."). Several wills doctrines hinge on or support this conception of the will as being a personal right or expression. For example, every will must be personally signed by the testator. See RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 3.1 (2003) ("A will is validly executed if it is in writing and is signed by the testator and by a specified number of attesting witnesses under procedures provided by applicable law."). Many states also recognize the validity of holographic wills, or wills executed without attestation of witnesses, so long as they are in the testator's personal handwriting. See id. § 3.2 ("Statutes in many states provide that a will, though unwitnessed, is validly executed if it is written in the testator's handwriting and signed by the testator, and, under some statutes, dated in the testator's handwriting."). Finally, the doctrine of undue influence also supports this personal understanding of willmaking, since it requires a showing that the will or volition of the testator was overcome in order to succeed. See, e.g., Caudill v. Smith, 450 S.E.2d 8, 10 (N.C. Ct. App. 1994) ("To prove undue influence in the execution of a document, a party must show that something operated upon the mind of the person allegedly unduly influenced which had a controlling effect sufficient to destroy the person's free agency and to render the instrument not properly an expression of the person's wishes, but rather the expression of the wishes of another or others."); Schmidt v. Schwear, 424 N.E.2d 401, 405 (Ill. App. Ct. 1981) (same). 62 UNIF. PROBATE CODE § 5-407(b)(3) (2010) ("[T]he Court, for the benefit of the person and members of the person's immediate family, has all the powers over the

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their statutes." In 1998, the UPC was revised to enable conservators to write or modifY the will of a ward with court approval," but only five states have enacted reforms in line with the most recent version of the UPC."' Thus, the domain of wills prohibits personal delegations, even though the right concerned is primarily statutory rather than constitutional in nature." The general nondelegation rule with respect to willmaking is not only curious when compared to health care," but it is also inconsistent within the field of trusts and estates more generally. Individuals can already delegate decisionmaking over the financial aspects of willmaking through a variety of mechanisms, including durable powers of attorney,"" powers of appointment, and various other nonprobate mechanisms, such as joint bank accounts, pension accounts with designated beneficiaries, and trusts." And, as noted earlier, a guardian of the estate has the ability to manipulate the ward's assets in various ways during life, which likely has a more profound impact on the ward's well-being than the additional power to dispose of assets at death. It seems surprising, then, that the willmaking power is nondelegable in most states. One possible explanation is that courts wish to safeguard the expressive function of wills, since the financial aspects are already delegable by other means. This, however, does not cure the inconsistency. First, much estate planning in practice is done through the use of form wills and other instruments, which has reduced the importance

estate and business affairs which the person could exercise if present and not under disability, except the power to make a will."). 63 See, e.g., MTCH. COMP. LAWS ANN. § 700.5407(2)(c) (West 2010); N .•J. S'T'A'l'. ANN.§ 3B:12-49 (West 2006); Brashier, supra note 28, at 83-85 n.72 (compiling statutes). 64 See UNTF. PROTJA'l'R CODE§ 5-411(a)(7) (2010). "' See Brashier, supra note 28, at 69 n.23. Other states only allow delegation of the power to modify a will for certain narrow tax purposes. See 755 ILL. COMP. STAT. ANN. 5/11a-18 (West 2007) (allowing a delegation for general tax purposes); FLA. STAT. ANN. § 744.441(18) (West 2011) (allowing a delegation only in the case of an estate tax charitable deduction). " See United States v. Perkins, 163 U.S. 625, 627 (1896) (noting that the right to dispose of property by will is within legislative control). 67 See infra Part I.B.3. 68 See infra Part III.A. 69 See RESTATEMENT (TIDRD) OF TRUSTS§ 17.1(c) (2003) ("[A] power of appointment traditionally confers the authority to designate recipients of beneficial ownership interests in or powers of appointment over property that the donee does not own."). 70 See John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 HARV. L. REV. 1108 (1984).

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of the testator's voice in the construction of wills. More importantly, trustmaking can be an equally expressive endeavor, yet it remains readily delegable." While the trend is toward making various aspects of willmaking delegable, the historical rule has been one of prohibition, which seems odd in light of estate planning's overall shift toward delegability of financial decision-making. 71

3. Health Care Health-care decisions facilitate good health and improve life expectancy. As discrete decisions, they have perhaps the most direct impact on the fundamental capabilities of life and bodily health.'' In the American jurisprudential scheme, decisions about bodily integrity, which include health-care decisions, are considered to lie at the root of personal autonomy." In constitutional law, several theories support this

71 Some commentators have argued that willmaking should become even more standardized. See Reid Kress Weisbord, Wills for Everyone: Helping Individuals Opt Out of Intestacy, 53 B.C. L. REV. 877, 920-37 (2012) (arguing for the attachment of a "testamentary schedule" to tax returns as a way of promoting willmaking and avoiding intestacy). Others have urged the opposite. See Gordon, supra note 59, at 383-84. 72 The Restatement (Third) of Trusts specifically notes how a general policy of prohibition of delegations could indeed apply to trusts as well:

[T]he will-making prohibition may instead manifest a more general, substantive policy against post-death dispositions by these fiduciaries that would alter the plan of disposition established by intestate succession or by an existing will executed by a person who has subsequently become incompetent. The breadth and generality of the latter policy would ordinarily apply by analogy to limit the post-death distributive provisions of a revocable inter vivos trust created by a legal representative or agent to dispositions that conform to the disposition of the affected property that would result, as the case may be, by operation of law or under the incompetent person's existing estate plan. RESTATEMENT (THIRD) OF TRUSTS § 11 cmt. f (2003) (citation omitted). The Restatement diffuses the difficulty by concluding that a narrower policy, based on "efficiency and tradition," justifies the proxy willmaking prohibition, though it is unclear what efficiencies result from authorizing guardians to make dispositions through will substitutes but not by will. 73 See NUSSBAUM, FRONTIERS, supra note 21, at 76 ("1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one's life is so reduced as to be not worth living. 2. Bodily Health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter."). 74 See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority oflaw.").

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understanding, including a positive right to privacy,'o a protected liberty interest, 76 and a dignitary interest in being free from governmental intrusion into one's body." Informed consent in medical tort law is also based on the idea that patients possess the ultimate right of decision with regard to questions of bodily integrity." Given the sacrosanct nature of these decisions, it is somewhat surprising that the large majority of them are also readily delegable. In fact, because most states have enacted statutory surrogacy laws, health-care decision-makers need not go through the cumbersome guardianship process to acquire decision-making authority." If there is a serious dispute between family members, the issue might end up in court; but generally, these proxy decisions are not subject to judicial approval or oversight. Instead, they are constrained by the medical profession's standard of care and code of ethics. 80 As a result, the whole decision-making process is taken outside the realm of the law and instead is relocated in the physicianfamily relationship." 75 See, e.g., Roe v. Wade, 410 U.S. 113, 152-53 (1973) (recognizing a sphere of personal privacy that protected a variety of autonomous decisions); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (protecting a right to the use of contraception, regardless of marital status). 76 See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (recognizing a constitutionally protected liberty interest in the refusal of medical treatment). 77 See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (holding that forcibly pumping a suspect's stomach for evidence "shocks the conscience" and violates his right to privacy). 78 See Schloendorffv. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914) ("Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."), abrogated by Bing v. Thunig, 143 N.E.2d 3 (1957). 79 Prior to the passage of such laws, physicians relied informally on family decision-makers without involvement of the law or the courts. See LAWRENCE A. FROLIK, THE LAW OF LATER-LIFE HEALTH CARE AND DECISION MAKING 219-21 (2006) ("The natural and customary reliance upon next of kin to make medical decisions for the mentally incapacitated is so deeply ingrained that it is rarely challenged."). 80 See, e.g., Woods v. Commonwealth, 142 S.W.3d 24, 49 (Ky. 2004) ("[J]udicial intervention into private decision-making of this sort is expensive and intrusive. It is both impossibly cumbersome and a gratuitous encroachment upon the medical profession's field of competence. Thus, unless the interested parties disagree, resort to the courts is unwarranted." (internal citations and quotation marks omitted)); John A. Robertson, Schiavo and Its (ln)Significance, 35 STETSON L. REV. 101, 106-07 (2005) ("The few disputes that have percolated up to the courts have been of two types. One type has involved cases in which doctors or hospitals refused to follow advance directives or proxy requests for or against treatment. The second type, of which Schiavo is an example, involves disputes between family members over a course of action."). 81 See PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-

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While most health-care decisions fall within the scheme outlined above, some decisions are regulated more closely. These decisions arise in areas where the state has a perceived interest to protect, such as the preservation of life.s' For example, many states require guardians to demonstrate the previous wishes of the ward by clear and convincing evidence, a higher evidentiary standard, before permitting them to make a decision to withdraw life-sustaining treatment." The Supreme Court has ratified such evidentiary hurdles, rejecting arguments that they represent unconstitutional infringements on the ward's right to refuse medical treatment through their guardians. 81 Another example arises in the area of transplantation of a ward's organs for the benefit of a third party, which typically requires judicial approval. 55 Thus, health-care decisions-those at the root of multiple fundamental capabilities-are readily delegable to others, oftentimes without judicial intervention or oversight.

*** The law has developed several mechanisms for dealing with the delegation of decision-making when incapacity strikes, but it has limited the use of these mechanisms for certain classes of decisions. While this part was primarily descriptive in exploring the mechanisms and how they are employed SUSTAINING TREATMENT 128 (1983), available at http://bioethics.georgetown.edu/ pcbe/reports/past_commissions/deciding_to_forego_tx.pdf (offering five reasons for deferring to the family). If a ward has gone through the guardianship process and has a guardian, then the guardian will be in the same role as the statutory surrogate. See id. at 128-30. 82 See John A. Robertson, Cruzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients, 25 GA. L. REV. 1139, 1140-41 (1991) (discussing the policy of "vitalism"). 83 See Alicia Ouellette, When Vitalism is Dead Wrong: The Discrimination

Against and Torture of Incompetent Patients by Compulsory Life-Sustaining Treatment,

79 IND. L.J. 1, 48-55 (2004) (compiling statutes). 84 See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261,284-85 (1990). 85 See Strunk v. Strunk, 445 S.W.2d 145, 145 (Ky. 1969) (authorizing transplant of kidney to brother based on a best interests standard and justifying it by noting the relationship the incapacitated person had with his brother); In re Doe, 481 N.Y.S.2d 932, 932 (App. Div. 1984) (authorizing bone marrow donation as the record had demonstrated clear and convincing evidence that it was in the ward's best interests); In re Pescinski, 266 N.W.2d 180, 182 (Wis. 1975) (not authorizing kidney transplant to sister, finding that the ward had not consented and that the transplant was not in the ward's best interests). For analysis of these types of cases, see generally Michael T. Morley, Note, Proxy Consent to Organ Donation by Incompetents, 111 YALE L.J. 1215 (2002); John A. Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 COLUM. L. REV. 48, 48 (1976).

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inconsistently in three particular domains, the next part examines the normative arguments justifYing access to these mechanisms.

II.

DELEGATION RATIONALES

This part examines the rationales for delegation of personal decision-making authority. First, it examines how the capabilities approach applies to the cognitive-impairment context, arguing that it requires equal access to personal decisions for those lacking decisional capacity. This, in turn, requires that they be able to make the decisions through a surrogate. This part then considers alternative normative arguments for delegation that derive from the legal standards governing the decision-making of surrogates: the substituted judgment and best interests approaches. Finally, this part examines the rationale courts use to justify a nondelegation rule-that certain decisions are too personal to be delegated to another-concluding that it is unavailing.

A.

Capability, Dignity, and Disability

The capabilities approach posits that a life worthy of human dignity is one in which a person has the capability to achieve certain functionings that society considers central to the human experience. These functionings might embrace the ability to do certain things (for example, to worship the faith of one's choice) or the ability to achieve certain states of being (for example, having good health)." A given person's capabilities are a "product of her internal endowments, her external resources, and the social and physical environment in which she lives."R7 Thus, in order to respect the inherent worth of individuals, a just society must provide the means through which individuals can exercise their capabilities. This can be accomplished by developing the internal endowments an individual possesses, altering the external resources afforded to her, restructuring the physical or social environment in which she lives, or allowing access to decisions that inhere in those

86 87

See NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 21, at 86-96. See Elizabeth Anderson, Justifying the Capabilities Approach to Justice, in

MEASURING JUSTICE: PRIMARY GOODS AND CAPABILITIES 96 (Harry Brighouse & Ingrid Robeyns eds., 2010).

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fundamental capabilities." These steps ensure that individuals flourish and lead lives worthy of human dignity. 89 For certain types of capabilities, this simply means that society must provide them at an adequate level. For example, while a just society may require that individuals have access to adequate shelter, that society need not ensure that each citizen's housing be equal in size or quality." But for other types of capabilities, the only way to ensure their adequacy is to ensure that they are provided on an equal basis. For example, political, religious, or civil liberties must be provided equally in order to be provided adequately. 91 Moreover, personal decisions fall in the same category-individuals must have equal access to them in order for their provision to be adequate." All citizens belonging to the human community are entitled to achieve these capabilities, and those with cognitive impairment should not be excluded from this human community simply because they lack the capacity to engage in certain forms of practical reasoning. 93 While rationality may be what separates us from some other animals in a descriptive sense, it is not the sole defining feature of a life worthy of human

88 Decision-making is built in to the capabilities approach, as personal decisions must be available to allow one to achieve certain functionings. Not all decision-making is per se fundamental though-it needs to be connected to some other fundamental capability to achieve that status and to be subject to the analysis of this article. For example, it would be difficult to characterize the decision to use a plate or a bowl to eat a routine meal as connected to some fundamental human capability. Thus, it is not a personal decision, and would not be subject to the same analysis. 89 See id. 90 Martha Nussbaum, The Capabilities of People with Cognitive Disabilities, in COGNITIVE DISABILITIES AND ITS CHALLENGE TO MClHAL PlllLOSOPllY 79-80 (Eva Feder Kittay & Licia Carlson eds., 2010). 91 I d.; see also Elizabeth S. Anderson, What Is the Point of Equality?, 109 ETHICS 287, 312-15 (1999) (arguing for a democratic conception of equality that justifies this understanding of adequacy as meaning equality in this instance). 92 Nussbaum, supra note 90, at 79-80. As noted in Part I, personal decisions are defined in terms of the relevant normative theory. Here, it is the capabilities approach, so personal decisions are defined as those that are implicated in fundamental human capabilities. Equal access can, of course, come in different forms (e.g. making a personal decision oneself versus relying on a surrogate to assist in making a personal decision), so long as access is achieved in a meaningful way. 93 While psychologically this may impact our perceptions of people with cognitive impairment as persons in some moral sense, this should not necessarily control the moral value we attribute to this population. See generally Heikki Ikiiheimo, Personhood and the Social Inclusion of People with Disabilities: A RecognitionTheoretical Approach, in ARGUING ABOUT DISABILITY: PHILOSOPHICAL PERSPECTIVES 77-92 (Kristjana Kristiansen eta!. eds., 2009) (examining how our recognition of people with disabilities as persons informs our judgments of personhood).

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dignity." Indeed, our humanity is also defined by, among other things, our capabilities to live in good health, experience things with our senses, form social attachments, and enjoy recreational activities. Only if an individual's capacity to exercise a significant cluster of these capabilities were cut off-for instance, in the case of someone in a permanent coma or persistent vegetative state-might we think that a person had perhaps stopped being part of the human community." Some might note that the loss of decisional capacity, a biological and perhaps unchangeable fact, causes the lack of capabilities. But a deeper analysis would see it as a combination of both the loss of capacity and the imposition of barriers that prevent guardians or other surrogates from making these types of decisions on behalf of their wards. These barriers, which manifest themselves in the form of nondelegation doctrines, serve to disempower those who lack decisional capacity, cutting them off from the capabilities to achieve functionings consistent with a life worthy of human dignity. As a symbolic matter, this is disconcerting because it sends the message that those with cognitive impairment are not worthy of the capabilities that inhere in the concept of human dignity. As a practical matter, it is troubling because those with cognitive impairment may still have preferences or interests that could be expressed through such surrogate decision-making. The reality for those living with cognitive impairment is that they must have access to someone who can assist them or act in their stead in order to realize equal access to personal decisions. For those who lack decisional capacity but can still communicate some form of preference, the task of the surrogate decision-maker or guardian is to elicit those preferences and transform them into a decision. For those who cannot even communicate any form of preference, the surrogate must be able to stand in for them, following a ward's preexisting life plan or making the decisions based on the ward's present best interests. 96 It might at first seem strange to suggest that having a surrogate assist in making decisions for a cognitively impaired 4

84 See NUSSBAUM, FRONTIERS, supra note 21, at 179-95. This is not to downplay the importance of practical reason in facilitating the other fundamental human capabilities. It is, in fact, central. Being able to form one's conception of the good life and plan one's life accordingly is what gives much of the content to the personal decisions that are actualizations of the various fundamental capabilities. " See id. In these cases, we might still support delegation of certain types of decisions for other reasons, but the rationale would need to come from some other theory. 86 See Nussbaum, supra. note 90, at 79-80.

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person actually realizes that person's capabilities. Personal assistants and assistive technologies, however, do not signal dependency or inauthentic autonomy. The disability rights movement has long argued that assistance is a form of empowerment and a guarantee of control over one's life and environment." Feminist analyses of dependency also clarify the difference between "socially necessary dependence" and "surplus dependence." The former is an "inescapable feature of the human condition," while the latter is "rooted in unjust and potentially remediable social institutions." Declines in cognitive abilities may be inescapable for many individuals as they age, but being disempowered by those cognitive deficits is, in fact, an unjust and remediable social institution. This principle is best illustrated by an analogy to mobility impairments. A person without functioning legs lacks the capacity to travel freely from place to place without assistance; however, it would be incorrect to view this solely as the product of the physical impairment. 99 It may also be the product of the lack of resources to purchase a wheelchair or the absence of a physical environment designed to enable access to streets and buildings with said wheelchair. If society were to provide the person with mobility impairments a wheelchair and an accessible environment, it could not then be said that that person is not truly experiencing movement or travel. Clearly, it is a different experience, but that person is still experiencing movement and travel, despite the fact that it is facilitated through alternative mechanisms that most people need not use. Similarly, society should allow those with cognitive impairments to plan ahead and select surrogates who will act 7

98

97 See, e.g., Alan Roulstone, Researching a Disabling Society: The Case of Employment and New Technology, in THE DISABILITY READER: SOCIAL SCIENCE

PERSPECTIVES 110-28 (Tom Shakespeare ed., 1998) (describing the role and importance of assistive technology in the employment context): Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. & MARY L. REV. 921, 9991000 (2003) (describing the philosophy of the independent living movement). The experiences of those with physical and mental impairments are not entirely parallel, however. Another crucial component of the independent living philosophy is the idea of consumer control over personal assistants, which may not be realizable to the same degree for people with cognitive impairments. See Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 75-81 (2004) (describing the role of consumer control). 98 See Nancy Fraser & Linda Gordon, "Dependency" Demystified: Inscriptions of Power in a Keyword of the Welfare State, 1 Soc. POL. 4-31 (1994). 99 This is an area where the capabilities approach converges with and complements the social model of disability. See generally MICHAEL OLIVER, THE POLITICS OF DISABLEMENT: A SOCIOLOGICAL APPROACH (1990).

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on their behalf if they lose decisional capacity, and it should create a set of default mechanisms to govern those who do not have such foresight. If society provides legal mechanisms to enable an individual to make personal decisions with the assistance of a surrogate, this does not mean that that person is not truly experiencing the capabilities facilitated by such decision-making. Again, the experience or outcome is certainly different, and that difference is a necessary byproduct of the cognitive impairment. But that difference alone, however, is not sufficient to deprive an individual of an aspect of the human experience that provides access to many of the other fundamental human capabilities that she might still be able to enjoy."o There is a final point to address before moving on. Mere provision of fundamental capabilities does not mean that one is required to exercise them to achieve the functionings they facilitate. 101 The same holds true with respect to the personal decisions that are the subject of this analysis. No one is required to divorce, make a will, or seek health care in order to lead a life worthy of human dignity, even if equal access to these opportunities is part of having the capabilities that we deem integral to a life worthy of human dignity. Similarly, surrogates would not be required to make these decisions either, provided that opting not to do so did not indicate some lack of capability or breach of fiduciary duty."~ The next subpart examines the standards for decision-making once a surrogate is empowered and suggests that other normative arguments for personal delegations might be derived from them. B.

Autonomy, Preferences, and Welfare

The capabilities approach requires equal access to decisions that implicate fundamental human capabilities, both 100 The analogy between physical and cognitive impairments exposes a tension in the field of disability studies about the role of guardianship as an empowering or disempowering institution. See Michael Berube, Equality, Freedom, and/or Justice fbr All: A Response to Martha Nussbaum, in COGNITIVE DISABILITIES AND ITS CHALLENGE TO MOHAL PlllLOSOPllY, supra note 90, at 97, 102-03. 101 See NUSSBAUM, FRONTIERS, supra note 21, at 171-73. Thus, the argument from the capabilities approach does not rely on a particular theory of what the content of surrogate decision-making should be; it merely posits that such surrogate decisionmaking should be allowed to occur. 102 At the same time, as a practical matter we might suspect that capabilities are not present if there is no exercise of the decisions that inhere in those capabilities. It may not be the result of choice, but instead of some undeveloped endowment, lack of material resources, or environmental barriers. See id.

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to recognize the dignity of people with cognitive impairments and as a matter of social justice."' There are other justifications for permitting or opposing personal delegations, which rely on alternative normative intuitions. This subpart sketches out some of these justifications by exploring the two legal decisionmaking standards that govern surrogate decision-making: substituted judgment and best interests. In other words, by understanding what surrogates should be doing once empowered, we can better understand why they should be empowered in the first place. It is important to note that there is a sizable literature about which decision-making standard to prefer," but this article does not seek to resolve that particular debate. The narrower task is to tease out the normative intuitions that underlie these models of surrogate decision-making and examine how they might apply to the question of personal delegations. 1

1. Substituted Judgment

When a surrogate decision-maker finds herself empowered to make decisions, in many states she lacks any guidance about the legal standards that govern her decisionmaking.'oc But for those states that have addressed the issue, the 103 It does not, however, specify a conception of the self over time (pre- and post-incapacity), nor does it suggest what legal standard of decision-making should govern a guardian or attorney-in-fact once empowered. 104 See, e.g., BUCHANAN & BROCK, supra note 26, at 10-12 (taking the middleground on appropriate approach for surrogate decision-making for the incapacitated); RONALD DWORKIN, LIFE'S DOI\IIINION 190-96 (1993) (describing the three issues of autonomy, best interests, and sanctity that run through this type of decision-making); ROBERTS. OLICK, TAKING ADVANCE DIRECTIVES SERIOUSLY: PROSPECTIVE AUTONOMY AND DECISIONS NEAR THE END OF LIFE xvii (2001) (advocating for prospective decisional autonomy); Norman L. Cantor, Discarding Substituted Judgment and Best

Interests: Toward a Constructive Preference Standard for Dying, Previously Competent Patients Without Advance Instructions, 48 RUTGERS L. REV. 1193, 1197 (1996) (arguing for a dignity-based approach); Rebecca Dresser, Precommitment: A Misguided Strategy f"or Securing Death with Dignity, 81 TEX. L. REV. 1823, 1823 (2003) (arguing for a best

interests approach that addresses the present interests of the ward); Leslie Pickering Francis, Decisionmaking at the End of" Lif"e: Patients with Alzheimer's or Other Dementias, 35 GA. L. REV. 539, 540, 591-92 (2001) (arguing for the precedence of autonomy-based decision-making procedures, so long as they do not result in pain to the incapacitated ward); Lawrence A. Frolik & Linda S. Whitton, The UPC Substituted Judgment I Best Interest Standard f"or Guardian Decisions: A Proposal f"or 45 U. MICH .•J.L. REFORM 739, 739, 741 (2012); Sanford H. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CALIF. L. REV. 857, 888 (1992) (arguing for a best interests test when the patient did not express a prior preference). 105 See Carolyn Dessin, Acting as Agent Under a Financial Durable Power of" Attorney: An Unscripted Role, 75 NEB. L. REV. 574, 587-88 (1996) (calling for clarity on the attorney-in-fact's duty to act); Linda S. Whitton & Lawrence A. Frolik, Surrogate Decision-Making Standards f"or Guardians: Theory and Reality, 2012 UTAH L. REV.

Ref"orm,

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common view is that the surrogate must employ a substituted judgment standard. 106 When a surrogate exercises substituted judgment, she must mimic, to the extent possible, the decisions the ward would make if the ward had capacity.'o' Originating in the common law of lunacy, the theory behind this subjective test is that it safeguards the ward's autonomy and preserves a state of the world that the ward would find desirable if she were to regain capacity. 108 Central to this standard is an understanding of the individual as an autonomous actor with preferences that survive incapacity. As such, the preferences a person had in the past should presumptively govern the future incapacitated self as well. When examined in the context of personal decisions and delegations, carrying these preferences through time takes on special importance, given that they are heavily involved in the process of self-definition and reflect certain core commitments, life plans, or ideals about the good life. Philosophers have devised many terms to describe these types of 1

"

1491, 1495 (2012) (noting that out of fifty-two jurisdictions considered (the fifty states, Washington D.C., and the Virgin Islands), twenty-eight had no legal standard for guardian decision-making). 106 See Whitton & Frolik, supra note 105 (noting that eighteen jurisdictions adhere to a substituted judgment standard, usually in combination with a best interests standard, while six jurisdictions adhere simply to a best interests standard). 107 See Curran v. Bosze, 566 N.E.2d 1319, 1322 (Ill. 1990) ("The doctrine of substituted judgment requires a surrogate decisionmaker to attempt to establish, with as much accuracy as possible, what decision the patient would make if [the patient] were competent to do so." (alteration in original) (internal quotation marks omitted)). 108 See Louise Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 YALE L.J. 1, 16 (1990). The lunatic was someone who previously had capacity, but now either lacks it completely or has interludes oflucidity. The lunatic was contrasted with the "idiot," who was never competent. Id. at 17-18. This standard raises evidentiary issues, specifically what is required to establish the ward's past preferences. Some states have required public statements of preference on the specific decision at issue. See, e.g., In re Westchester Cty. Med. Ctr. ex rel. O'Connor, 531 N.E.2d 607, 607 (N.Y. 1988); In re Storar, 420 N.E.2d 64, 67-68 (N.Y. 1981) (involving a Brother of the Society of Mary who had publically declared that he did not wish life-sustaining treatment during conversations about the case of Karen Ann Quinlan). Other states have accepted a more holistic analysis, examining the ward's religious beliefs or general values. See In re Jobes, 529 N.E.2d 434, 444 (N.J. 1987) (requiring surrogate decision-makers to consult the ward's "relevant philosophical, theological, and ethical values"); see also DeGrella v. Elston, 858 S.W.2d 698, 708-09 (Ky. 1993); Mack v. Mack, 618 A.2d 744, 758 (Md. 1993). 100 See OLICK, supra note 104, at 45-112 (laying out the ethical argument for prospective decisional autonomy); see also JOEL FEINBERG, HARM TO SELF: THE MORAL LIMITS OF THE CRIMINAL LAW 11 (1986) (describing harm as a "setback [to] interests"). This approach rejects the notion that incapacity creates a new self that is disconnected from a former self that might have inhabited the same body. See OLICK, supra note 104, at 127-51.

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commitments-"critical interests,"'w "second-order "ulterior interests,m 12 or simply "projects"113-but the key point is that they are important to maintaining a sense of self and are heavily interwoven with identity. Some of these projects might be interpersonal in nature (for example, devotion to family or maintenance of important relationships), while others may be quite unique to the individual (for example, being known for having a particular quality, such as fashion sense, or for achieving fame in a particular sport or game, such as online poker). If we presume that the same person exists before and after incapacity, then maintaining these life plans after incapacity is of fundamental importance. Whereas under the capabilities approach we would define personal decisions as those that implicate fundamental capabilities, under a substituted judgment approach we might define personal decisions as those that are implicated in especially important commitments that have some identityforming function. Under this approach, delegating decisionmaking authority or maintaining a status quo outcome by prohibiting personal delegations could both be viewed as ways of exercising prospective decisional autonomy. Moreover, many personal decisions taken while a person still has capacity create a status quo outcome that is likely preferred by the individual through time. This fact alone, however, is not a reason to prohibit delegation of personal decisions to a surrogate.''' First, altering the status quo outcome may be the 110 See DWORKIN, supra note 104, at 201-02 (characterizing critical interests as fundamental to making sense of one's existence, and contrasting them with simple experiential interests). 111 See Harry G. Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. PHIL. 5, 6-7 (1971) ("Besides wanting and choosing and being moved to do this and that, men may also want to have (or not to have) certain desires or motives."). 112 See FEINBERG, supra note 109, at 36-45 (describing these as interests that we value as ends in themselves). 113 See BERNARD WILLIAMS, MORAL LUCK 5 (1981) (describing our projects as those enterprises that shape our character); see also GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 16-20 (1988). 114 For example, one could argue that one might best approximate what most wards' preferences are by favoring a status quo outcome, if certain conditions are met. The argument would be strongest if the status quo outcome would be favored by a large majority of wards, if circumstances would be relatively stable in that decisional domain such that the expression of the preference would not run counter to some other higherorder preference of the ward, and if delegation to a surrogate would for some reason result in a substantial level of abuse, leading to outcomes that a ward would not favor. It is not clear that these conditions hold strongly in many of the decisional domains considered here, but the argument can certainly be made for a prohibition of personal delegations on this basis.

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best way of safeguarding an individual's life plan if circumstances change. This is clearest in the case of health care, where changing health conditions and treatment options might dictate a different way of honoring a person's preexisting preferences. Second, the status quo outcome is not necessarily always reflective of a decision made by the individual. This is clearest in the case of voting, where the status quo outcome would represent nonparticipation in the political system, which may or may not reflect the individual's prior political participation. Thus, if one adheres to the ideas of prospective decisional autonomy, continuous personal identity, and the importance of preserving preexisting life plans, then one might find the rationale behind the substituted judgment standard to be an attractive reason to permit delegation of at least some personal decisions. 2. Best Interests Sometimes it is impossible to know what the ward would have wanted, either because she did not express a concrete opinion on a subject or because her other known values are indeterminate in their application to a specific factual situation. Alternatively, one might believe that the ward's incapacity so alters the self that it has created a new person, who should not be bound by the ward's previously expressed wishes. In either case, the guardian must shift to a best interests test. 11' Under this standard, the guardian must do what is objectively best for the ward. The application of the best interests analysis depends on the measure of welfare one adopts. In the same way, the definition of a personal decision also varies according to the normative theory one selects. Under the best interests analysis, 11

'

117

115 For the strongest proponent of this type of view in philosophy, see generally DEREKPARFIT, REASONS AND PERSONS (1984). For an application of this work to the law, see Rebecca S. Dresser & John A. Robertson, Quality uf' Life and NunTreatment Decisions fbr Incompetent Patients: A Critique uj'the Orthodox Approach, 17 L., MED., & HEALTH CARE 234, 240-41 (1989) (arguing for a present interests approach). 116 See Allen E. Buchanan, The Limits of' Proxy Decisionmaking f'or Incompetents, 29 UCLA L. REV. 386, 407-08 ("In some of the cases where the substituted judgment standard yields no defensible result, the courts should retreat to the traditional doctrine of parens patriae and act in the incompetent's best interests."). 117 See In re C.E., 641 N.E.2d 345, 354 (Ill. 1994) ("Under the 'best interests' test, the court is guided by an objective standard of what a reasonable person would prefer under the circumstances of the particular case."). This test originates in the law of child custody. See Harmon, supra note 108, at 30 n.170, 32-33.

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personal decisions would be defined as those likely to affect welfare, however defined, in substantial ways. 118 Subjective measures of welfare, such as preference satisfaction, 119 might be difficult to implement in the case of decisional incapacity. Indeed, if a court has determined that a person lacks decisional capacity, then a judgment exists that the ward's cognitive processes governing preference formation or reasoning are impaired. If an individual can no longer form preferences, then it is not clear that preference satisfaction functions well as a measure of welfare in this context. On the other hand, if an individual can still formulate preferences that should be honored but needs assistance converting those preferences into a set of decisions or a coherent life plan, then a guardian or attorney-in-fact may be best positioned to assist in doing so. This suggests that personal delegations should be permitted to allow this process to take place. 120 The best interests of the ward could also be measured according to some objective criteria, such as whether a given decision reflects the preferences of a reasonable person in the ward's circumstances or promotes certain virtues. m If the objective criteria in question are easily connected to a status quo outcome, then a bar on personal delegations (to maintain said status quo outcome) would be preferable to individualized decision-making by a surrogate. For example, if one believed that the continuation of life through the use of feeding tubes represented a positive outcome for the individual and society in most instances, or if a consensus existed in society that this was the case, then a default rule requiring that outcome would be superior to personal delegations that might allow a surrogate to deviate from that outcome. But absent an argument for this outcome or a societal consensus on the topic, it is not clear that 118 Again, the definition of personal decisions in the best interests approach will overlap significantly with other normative approaches, though it of course depends on the theory of welfare one selects. 110 See MATTHEW D. ADLER & ERIC A. POSNER, NEW FOUNDATIONS OF COSTBENEFIT ANALYSIS 28-35 (2006) (discussing this welfarist approach). 120 Some scholars have revived the classic hedonic conception of subjective welfare. See generally John Bronsteen et al., Welf'are as Happiness, 98 G!W. L.J. 1583, 1593-1600 (2010). Applying this formulation of welfare to the case of decisional incapacity raises a host of empirical questions. So long as a person lacking decisional capacity is capable of experiencing pleasure or pain, we would need to know whether allowing personal delegations would increase or decrease aggregate happiness measured at moments in time, including those moments that occur post-incapacity. I d. 121 See generally PHILLIPA FOOT, NATURAL GOODNESS (2001) (promoting such a virtue ethics approach); Lawrence B. Solum, Natural Justice, 51 AM. J. JURIS. 65 (2006) (applying this approach to judging and justice more generally).

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barring personal delegations would lead to fulfillment of the ward's best interests in a given decisional domain. The rise of personalized default rules may make it possible to tailor status quo outcomes to particular populations, but these rules are still in their infancy, and it is not clear that they would apply to personal decisions as well as they apply to financial ones. m The normative intuitions underlying the substituted judgment and best interests standards of decision-making help us understand alternative rationales for personal delegations. Having briefly considered them, the next subpart critiques the primary argument courts use to justify a nondelegation rule for personal decision-making authority, namely that some decisions are too personal to delegate to another. C.

The Personal in Personal Decisions

Having examined the case for delegating personal decisions, I turn now to potential objections. These objections derive from courts' justifications of nondelegation rulesspecifically, the classification of a decision as personal. The Luster court suggested two possible rationales underlying the concept of the personal that justify a nondelegation rule, and these are echoed throughout the case law. The first refers to personal preferences that are idiosyncratic, such as certain tasteS. Some people abhor bitter drinks, while others find them to be a refreshing palate cleanser. These preferences are not easily predictable, even if they are occasionally expressed publicly. In fact, the reasons for these preferences, whatever they may be, may have comprehensible meaning only to the original decision-maker, if at all. 1' '

124

122 See Cass R. Sunstein, Impersonal Default Rules us. Active Choices us. Personalized Default Rules: A Triptych, 1, 4-5 (Nov. 5, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171343 (discussing the tradeoffs between different types of default rules (societal or personalized) and active choices and exploring the points at which it might make sense to favor one strategy over another). 123 See supra Part LB. 124 See Thomas F. Cotter, Legal Pragmatism and the Law and Economics Movement, 84 GEO. L.J. 2071, 2122-23 (1996) (discussing how unstable preferences can complicate otherwise straightforward law and economics analyses); Mark Kelman, Law and Behavioral Science: Conceptual Overviews, 97 Nw. U. L. REV. 1347, 1363 (2003) ("[T]he idea that we can speak intelligibly about developing institutions that effectively respond to 'tastes' depends on the notion that there are stable tastes to respond to, rather than on the notion that there are far more shifting, unstable preferences that appear or disappear, depending upon how we elicit them.").

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The second is that the preferences underlying personal decisions may be particularly private or unrevealed to others.'" Part of this rationale stems from the fact that personal decisions occur in private and thus cannot be observed by others. For example, most people have sex only in the presence of their sexual partners. Without knowing what particular decision was made in the privacy of the home, it is difficult for others to theorize about the preferences underlying the decision. Moreover, if the decision occurs only rarely, then the possibility of observation will be even more difficult. For example, many people do not repeatedly divorce or make decisions about their own end-of-life health care, meaning that opportunities to observe the decision before incapacity strikes may be very limited. Finally, even if the decision is observed, unless the ward has explained her reasoning behind the decision, it may not be possible to decipher her underlying preferences and how they might apply to a novel situation."' In short, both of these characterizations of personal preferences point to the same conclusion: a surrogate decisionmaker is likely to get the decision wrong because the ward's preferences are unpredictable or unknowable. Even if these accounts have merit, they are not an indictment of personal delegations per se but rather of the application of the substituted judgment standard for surrogate decision-making in personal domains. If there were no other workable decisionmaking standard, then a simple nondelegation rule might be prudent. But that is not the case. The best interests standard can guide surrogate decision-making in the place of the substituted judgment standard, and it has proven at least workable in the context of children.''' 125 See Christine J oils, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1488 n.46 (1998) (noting how economists consider preferences "revealed" when choices are made); Bailey Kuklin, The Gaps Between the Fingers of the Invisible Hand, 58 BROOK. L. REV. 835, 853-55 (1992)

(noting the difficulties that economics have in predicting preferences that are unstable or unrevealed); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 932 (1996) (noting how economists consider preferences "revealed" when choices are made). 126 Various types of personal preferences may not even be operative in the situation of incapacity. If a ward previously bought and read books on her iPad, and now does not have the ability to process such text, it would not make sense to continue buying books and giving her an iPad to play with. The preference has no meaning in the new context. 127 See Gaia Bernstein & Zvi Triger, Over-Parenting, 44 U.C. DAVIS L. REV. 1221, 1242-43 (2011); but see Jon Elster, Solomonic Judgments: Against the Best Interests of the Child, 54 U. CHI. L. REV. 1, 4-5 (1987). There is some literature developing what might constitute "best interests" for a person lacking decisional capacity.

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Thus, there needs to be some additional argument why personal delegations are inherently invalid. One might argue that prohibiting personal delegations serves a useful function in protecting personhood, as personal delegations may violate the inalienable nature of personal decisions.''s Those favoring inalienability of certain goods claim that making them alienable through a market mechanism constitutes a type of violence to personhood that inhibits human flourishing. 120 Proponents argue that if certain goods are even partially transformed into commodities, market rhetoric will inappropriately come to dominate our understanding ofthem. 130 But is delegation of personal decisions subject to the same sort of argument? Perhaps certain decisions are so intimately associated with personal identity or a person's social relationships that allowing those decisions to be made by another would do violence to personhood or human flourishing. In the context of marriage, many individuals view their See Bruce Jennings, Agency and Moral Relationship in Dementia, in COGNITIVE DISABILITIES AND ITS CHALLENGE TO MORAL PHILOSOPHY, supra note 90, at 171. 128 Delegation of personal decisions deems the right of decision over personal matters alienable. See Donald Van de Veer, Are Human Rights Alienable?, 37 PHIL. STUD. 165, 168 (1980) ("[S]o long as A by some act or omission ceases to have a right formerly possessed, whether or not that right is acquired by another, A alienates that right. So, if a right is transferable, waivable, or forfeitable, the right is alienable."). This type of argument is familiar in property law and acts as a justification for prohibiting the transfer of body parts for monetary gain. The classic take on inalienability rules in the law comes from Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1093 (1972) ("[R]ules of inalienability not only 'protect' the entitlement; they may also be viewed as limiting or regulating the grant of the entitlement itself."). Inalienability rules can take many forms. See Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1852-55 (1987) (noting that separation from the self is the key to the concept of inalienability, and differentiating nonforfeitability, nonwaivability, nongivability, nonsalability, and nontransferability); Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 COLUM. L. REV. 931, 933-37 (1985) (recognizing three dimensions to property rights-who may hold the entitlement, what actions must be taken or not taken to maintain the entitlement, and what kinds of transfers are permitted). 129 See MARGARET JANE RADIN, CONTESTED COMMODITIES 88 (1996) ("Systematically conceiving of personal attributes as fungible objects is threatening to personhood because it detaches from the person that which is integral to the person."). Radin admits that "[t]here is no algorithm or abstract formula to tell us which items are (justifiably) personal. A moral judgment is required in each case." Radin, supra note 128, at 1908. For a contrary view, see Richard A. Epstein, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, 37 J. LEGAL STUD. 459 (2008) (arguing for a market in kidneys). 130 To demonstrate how this might be the case, Radin uses the example of how some theorists of law and economics try to understand prohibitions on rape in terms of market logic. RADIN, supra note 129, at 87 ("[F]or all but the deepest enthusiast [of law and economics], market rhetoric seems intuitively out of place here, so inappropriate that it is either silly, or somehow insulting to the value being discussed, or both.").

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decisions to stay married as intimately intertwined with their identity as a married person."' Similarly, a will often represents an individual's final statement about her relationships and her conception of how her property should be distributed to her heirs."' In the health-care context, a decision to refuse life-sustaining treatment or donate an organ to a relative might reflect intimate religious beliefs." 3 The alleged danger lies in the notion that delegation may come to dominate our understanding of these types of decisions. If the law can simply designate another to make these decisions for us, the argument goes, then we may lose the exclusive sphere of personal decision-making that allows us to construct our identities and relationships with others. In the context of personal decisions and incapacity, this argument is unpersuasive. Invoking the personal nature of a decision to justifY a nondelegation rule confuses nondelegability for nondecision. If a surrogate is prohibited from making a decision for an incapacitated ward, this does not mean that a personal decision is not being made. To the contrary, nondelegation merely makes a decision in favor of a status quo outcome, whatever that may be." The decision being made may be obscured by the language courts use, but it is relatively easy to identify upon closer inspection. In the case of divorce, the status quo is the continuance of marriage, and thus the default rule is anti-divorce. Likewise, prohibitions on delegation of the decision to marry would maintain the status quo of being single. In the case ofwills, where the individual did not make a will, the status quo is distribution of the estate by the state's rules of intestacy, and the default rule incorporates all the values embedded in those rules."' 4

131 See Geoffrey P. Miller, The Legal Function of Ritual, 80 CHI.-KENT L. REv. 1181, 1213 (2005) (discussing how rituals such as marriage can come to transform identities). 132 See supra Part I.B.2. m See Eric Rakowski, Taking and Saving Lives, 93 COLUM. L. REV. 1063, 1132 (1993) (discussing the difficulties of a one-size-fits all organ transplantation regime, given the diversity of religious belieD. 104 The concept of default rules is pervasive in the law. See, e.g., Adrienne Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 COLLJM. L. REV. 1955 (2010) (family law); Adam J. Hirsch, Default Rules in Inheritance Law: A Problem in Search of Its Context, 73 FORDHAM L. REV. 1031 (2004) (inheritance law); Melanie B. Leslie, Fiduciary Duties and the Limits of Default Rules, 94 GEO. L. REV. 67 (2005) (trust law); Nathalie Martin, Consumer Scams and the Elderly: Preserving Independence Through Shifting Default Rules, 17 ELDER L.J. 1 (2009) (elder law). 135 The status quo could also change. Intestacy rules could be altered so that all property escheats to the state upon death. The rule on withdrawal of life-sustaining treatment might specify that medical intervention will cease after $500,000 of public

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Whatever the status quo outcome might be, a flat prohibition based on the personal nature of the decision obscures the decision being made-and its associated circumstances-from public inquiry. There is reason to be suspicious of this approach, or at least to interrogate the status quo outcomes in more depth. The personal nature of a decision or situation is typically invoked as part of an exercise in drawing a line between the public and private spheres, with the personal located on the private side of the line. This practice is not new, and the public-private distinction has a storied history in the law. 136 Several scholars have vigorously attacked it, however, and for good reason. Legal realists point out that the public and private are interconnected, and thus many of the areas of law thought to be private in nature are in fact regulated by publicly promulgated rules. m Feminist legal theorists emphasize that the distinction runs along gendered lines, and that the private sphere is the site of various injustices visited upon women, including domestic violence. 1' 8 Prohibiting regulation of, or court involvement in, the private condones these injustices. Further, we can actually identify concrete harms that might arise from a nondelegation rule. These dangers are most salient in the health-care domain. Health-care decisions represent exercises of capabilities to lead lives of length and 1

''

monies have been spent on the ward. Marriage could require that the marriage contract be renegotiated every five years. 136 See generally Morton J. Horwitz, The History of' the Public/ Private Distinction, 130 U. PA. L. REV. 1423, 1426 (1982) (describing the historical evolution of the public/private distinction in legal thought). 137 See, e.g., Morris R. Cohen, The Basis of' Contract, 46 HARV. L. REV. 553, 585-86 (1930) (noting how ostensibly private contractual law is actually regulated through public rules); Robert L. Hale, Force and the State: A Comparison of' Political and Economic Compulsion, 35 COLUM. L. REV. 149, 168-69 (1935) (noting that the government can induce private conduct through public policies such as taxation); Roscoe Pound, Liberty of' Contract, 18 YALE L.J. 454, 484-85 (1909) (noting how ostensibly private contractual law is actually regulated through public rules). 138 See generally Catherine MacKinnon, Privacy v. Equality, in FEMINISM UNMODIFIED 100 (1989). 138 See, e.g., CATHERINE A. MACKINNON, TOWARD A FEMINIST THEORY OF STATE 95 (1989) ("ISiince a woman's problems are not hers individually but those of women as a whole, they cannot be addressed except as a whole. In this analysis of gender as a nonnatural characteristic of a division of power in society, the personal becomes political."); SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 110-33 (1989) (analyzing the idea of separate spheres); Frances E. Olsen, The Family and the Market: A Study of' Ideology and Legal Rej'orm, 96 HARV. L. REV. 1497, 1563-70 (1983) (critiquing the dichotomy between family and market). For a summary of the different feminist critiques, see Ruth Gavison, Feminism and the Public I Private Distinction, 45 STAN. L. REV. 1, 10-43 (1992).

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good health. Imagine the harm that could befall wards who are at the mercy of a prohibition on guardian decision-making in health-care affairs. This would favor the status quo of nontreatment (or existing treatment at the point of decisional incapacity). While this might be salutary in some circumstances (for instance, in preventing overmedication), '' more often it would have disastrous consequences if the ward suffered from a serious but treatable illness and was not already in a healthcare institution.''' Thus, the argument fails on its own terms. If the damage is done simply by the decision being made by someone who did not initially possess the right of decision, then nondelegation fails to eliminate the harm. Nondelegation has merely shifted the decision to the status quo outcome created by the background legal framework. Indeed, it is more injurious to personhood to allow a decision to be made by an impersonal default rule, representing the majoritarian impulses of a given society, rather than by a guardian, who is likely a family member who knew the ward well and could express her wishes more faithfully. In other words, capabilities are meant to be individual expressions, not paternalistic defaults. Even if there is some damage to personhood, however conceived, the damage is minimized or eliminated by the fact that such personal delegations take place in the context of decisional incapacity. The individual lacking decisional capacity cannot make, or needs assistance in making, the decision herself, which requires that a surrogate assist in doing so.'" Thus, personal delegations could actually be viewed as 0

140 See Jan Ellen Rein, Preserving Dignity and Self-Determination of the Elderly in the Face of Competing Interests and Grim Alternatives, 60 GEO. WASH. L. REV. 1818, 1871-72 (1992) ("Wards are frequently relegated to institutional settings where they suffer from overmedication, physical restraints, and sensory deprivation for the convenience of the staff and for the sake of minimizing costs."). 141 Of course, we can also identifY concrete harms that could flow from nondelegation regimes in the areas of divorce and wills. For divorce, an abusive spouse could continue to dissipate marital assets (leaving the ward destitute), while in wills, inheritance could flow to an insolvent heir (frustrating the ward's desire for her money to go to family members and not creditors). '" See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271, 275 (1984) ("[T]o say that autonomy cannot be alienated is not to deny that one human being can be legitimately subject to the guardianship of another .... Individuals who altogether lack, or have lost, the relevant capacities are prime candidates for paternalistic intervention."). In addition, delegations are revocable transfers of decision-making authority, though failure to reacquire decisional capacity makes them irrevocable for this set of individuals.

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promoting personhood, since they preserve the capabilities of the person lacking decisional capacity. III.

LEGAL REFORM

The proposal that flows from the analysis above is simple but broad in scope. If a decision implicates fundamental human capabilities and must be provided on an equal basis in order to be provided adequately to all, it should be delegable. 113 This proposal will almost certainly trouble those who are aware of high-profile instances of agent and guardian abuse. 144 Such abuse undoubtedly exists and must be taken seriously, for in many cases it may threaten the fundamental human capabilities ofthose lacking decisional capacity. This issue is not new, however, and we must be on guard against instituting legal reforms on the basis of anecdotal horror stories, as emotionally compelling as they might be. 11' While cases of abuse surely exist, we should not presume that a surrogate would make decisions that would be harmful to the ward's interests in all, or even most, cases. As these are often weighty decisions, surrogate decision-makers143 There may be cases in which permitting personal delegations for those with cognitive impairments threatens the capabilities of others who are similarly situated. See .Janos Fiala-Butora, Michael Ashley Stein & .Janet E. Lord, The

Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 HARV. INT'L L.J. __ (forthcoming 2014) (noting this potential dynamic

with respect to the delegation of voting). This important point reminds us that we must pursue a careful analysis of the theoretical and practical tradeoffs involved in constructing a personal delegations regime, particularly for different subgroups of individuals with cognitive impairments. In other words, there might be decisional domains in which personal delegations in practice do not achieve the normative goals for which they are put in place. 111 See, e.g., MERYL GORDON, MRS. ASTOR REGRETS (2008) (detailing the abuses Brooke Astor, wealthy philanthropist, suffered at the hands of her son during the final years of her life). 145 Lawrence Frolik put it particularly well: In the absence of "hard" data, both reformers and counter-reformers are free to rally support for their positions by pointing to horror stories of individual injustices. While emotionally compelling, these individual cases do not add up to a sound policy argument. No guardianship system will operate flawlessly and dispense justice to all at affordable prices. No particular outcome nor even a series of bad outcomes can automatically be interpreted as evidence of systemic problems. As with any system dependent on the actions, judgment, and discretion of numerous actors, the guardianship system will always fail some individuals. No matter how many reforms or counter-reforms are enacted, no matter how the system is modified, there is no perfection on this side of paradise. Lawrence A. Frolik, Guardianship Reform: When the Best Is the Enemy of the Good, 9 STAN. L. & PoL'yREV. 347, 351 (1998).

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who are often family members with interests that are aligned with their wards-would not take them lightly. In other words, there is no reason to believe that surrogates would necessarily divorce their wards or cut off life support on a whim. More importantly, these stories alone certainly do not compel us to disempower the class of individuals with cognitive impairment. 116 The essential question for the design of legal institutions is whether these types of decisions are relevantly different from those decisions already delegated, and thus, whether they require different institutions or legal rules to manage them. This part fleshes out how broader personal delegations would work in the context of durable powers of attorney and guardianship. It then provides a preliminary analysis of the areas of divorce, willmaking, and health care.

A.

Durable Powers of Attorney

The background principle of agency law is that any lawful act may be delegated to another." Nevertheless, agency law has recognized an exception for a class of acts that require "personal performance" because of public policy, statute, or contract. 118 While the requirement of personal performance of 7

146 It is, of course, an empirical question whether personal delegations would lead to widespread abuse or not. If it was demonstrated that surrogate decision-makers were consistently refusing to take personal decisions to allow their wards to actualize their capabilities, not respecting their wards' wishes, or expressly harming their wards' interests through the use of personal decision-making authority, this would call into question whether permitting personal delegations actually serves to promote the capabilities, dignity, and human flourishing of people with cognitive impairments. 147 See FLOYD R. MECHEM, A TREATISE ON THE LAW OF AGENCY § 80 (2d ed. 1914) ("General rule-For any lawful purpose.-It is the general rule that an agency may be created for the performance of any lawful act, and that whatever a person may lawfully do, if acting in his own right and in his own behalf, he may lawfully delegate to an agent."). 118 This exception has taken different forms, although the content has remained the same. For instance, the Restatement (Third) of Agency lists this exception under the heading "Capacity to Act as a Principal":

(3) If performance of an act is not delegable, its performance by an agent does not constitute performance by the principal.

Comment:

c. Delegability. A person may delegate performance of an act if its legal consequences for that person are the same whether the act is performed personally or by another. If personal performance is required, performance by an agent does not constitute performance by the principal.

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contractual terms should not be disturbed, statutes and judicial interpretations of public policy should permit an individual to delegate personal decision-making authority to an agent (or coagents) in advance through a springing durable power of attorney."o Such advance planning is desirable because the principal is in the best position to select a trustworthy agent who is knowledgeable about the principal's beliefs and preferences. In addition, it will avoid the more cumbersome guardianship process, as a probate court will generally refuse to appoint a guardian if it appears that a ward's needs are wellserved by an attorney-in-fact. 150 The current trend in crafting durable powers of attorney is to require that particular "hot powers" be specifically delegated in the instrument. Examples include the creation of a trust/" revocation of a trust, changing a life insurance 1

1

"'

RESTATEMENT (THIRD) OF AGENCY§ 3.04(3) & cmt. c (2006). Thus, the definition hinges on "personal performance," which is left undefined, except by way of an example following the comment of a lawyer who is personally required to read certain documents. Older Restatements were more explicit about what constituted nondelegable acts. The first and second Restatements have identical language on this point: § 17. What Acts are Delegable

A person privileged, or subject to a duty, to perform an act or accomplish a result can properly appoint an agent to perform the act or accomplish the result, unless public policy or the agreement with another requires personal performance; if personal performance is required, the doing of the act by another on his behalf does not constitute performance by him. Comment: a. For most purposes, a person can properly create a power in an agent to achieve the same legal consequences by the performance of an act as if he himself had personally acted. RESTATEMENT (SECOND) OF AGENCY§ 17 (1958); RESTATEMENT (FIRST) OF 17 (1933). 149 The springing condition is decisional incapacity, and the durable power of attorney would have to specify an acceptable method of such a determination, such as certification by a physician. The question of whether delegation should be permitted while an individual still has capacity is a question beyond the scope of this article. That being said, immediately effective durable powers of attorney have several advantages over the springing version. See Linda S. Whitton, Durable Powers as an Alternative to Guardianship: Lessons We Have Learned, 37 STETSON L. REV. 7, 19-23 (2007). 150 See McCallie v. McCallie, 660 So. 2d 584, 586-87 (Ala. 1995); In re Isadora R., 773 N.Y.S.2d 96, 97 (App. Div. 2004); In re Peery, 727 A.2d 539, 540 (Pa. 1999). But see In re Guardianship & Conservatorship of Blare, 589 N.W.2d 211, 214 (S.D. 1999). 151 See In re Estate of Kurrelmeyer, 895 A.2d 207, 211-12 (Vt. 2006). 152 See Muller v. Bank of Am., N.A., 12 P.3d 899, 904 (Kan. Ct. App. 2000); First Union Nat'! Bank of Virginia v. Thomas, 37 Va. Cir. 35 (1995).

AGENCY§

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beneficiary designation,'"" or gifting away property."' These powers are considered "hot" because of their potential to alter an existing estate plan or dissipate the property of the estate. 155 The requirement that these powers be specifically delegated acts both to protect principals from the inadvertent granting of such powers but also to clarify that such powers are indeed delegable. 156 To assist principals in determining which powers must be specifically delegated, one need only add to the list of powers that require specific delegation contained in the Uniform Statutory Form Power of Attorney Act. 157 The personal decisions at issue here could certainly be considered "hot," although perhaps in a slightly different sense. They may in some circumstances have the ability to affect the principal's estate plan, but they also have the potential to alter the principal's life plan, changing significant objectives or social relationships that the ward had come to value. Given the importance of these personal decisions, it is imperative that an agent consult with the ward to discern whether there are any preferences she might express that would inform surrogate decision-making. Some commentators have suggested that this be required of all "fundamental transactions" that occur under a durable power of attorney, before or after the loss of decisional capacity, and this approach is consistent with the proposal here as well. Most states give attorneys-in-fact wider berth than guardians, due to the fact that the principal has selected the agent m advance and specifically delegated controversial 1

"

100 See Weaver v. Deverell, 2011 Tenn. App. LEXIS 579, at *17-18 (Tenn. Ct. App. Oct. 26, 2011). 154 See King v. Bankerd, 492 A.2d 608, 612-13 (Md. 1985). 155 See Linda S. Whitton, The Uniform Power of Attorney Act: Striking a Balance Between Autonomy and Protection, 1 PHOENIX L. REV. 343, 348 (2008). 150 See id. 157 See UNIF. STATUTORY FORM POWER ATT'Y ACT§ 1 (1988), 8b U.L.A. 191, 201(a) (2001) (requiring specific delegation for the creation, revocation, amendment, or termination of a trust, making a gift, creating or changing a right of survivorship, creating or changing a beneficiary designation, authorizing another person to exercise authority granted to an agent, waiving the principal's right to be a beneficiary of a joint and survivor annuity, exercising fiduciary powers that the principal has authority to delegate, and disclaiming or refusing an interest in property). 158 See Nina A. Kohn, Elder Empowerment as a Strategy for Curbing Hidden Abuses of Durable Powers of Attorney, 59 RUTGERS L. REV. 1, 42-51 (2006) (outlining such a proposal); see also Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act, 81 U. COLO. L. REV. 157, 237-39 (2010) (discussing "representation agreements" in Canada, which have a similar flavor).

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powers."" Regardless ofthe specific regime a state might adopt for attorneys-in-fact as a whole, it is imperative that the nature ofthe fiduciary relationship be clear, so as to provide guidance to those agents and provide guidelines for evaluating potential abuse."o

B.

Guardianship 1. Guardianship Regimes

For those who have not planned in advance, the state should be permitted to delegate personal decision-making authority to a guardian. This system of expanded personal delegations should be accompanied by other reforms, however, to ensure that these delegations do not serve to aggrandize the power of guardians at the expense of wards. This is a real problem, especially because the United States relies too heavily on a plenary model of guardianship, where there is little tailoring of guardianship to specific decisional incapacities. This concern might be addressed, in part, by preserving (or explicitly adopting by statute) the current capacity requirement for many types of personal decisions, which is relatively low. 161 Thus, an individual retains the capacity to make these decisions after losing other types of decisional capacity, and despite being placed under plenary guardianship. 162 This protects the ward's control over this important class of decisions, though it most 150 Karen E. Boxx, The Durable Power of' Attorney's Place in the Family of' Fiduciary Relationships, 36 GA. L. REV. 1, 42-48 (2001) (discussing reforms in various states, which range from requiring that a durable power of attorney be recorded to enabling third parties to police attorneys-in-fact in various ways). 160 See id.; Carolyn Dessin, Acting as Agent Under a Financial Durable Power of' Attorney: An Unscripted Role, 75 NEB. L. REV. 574, 587 (1996) (calling for clarity on the attorney-in-fact's duty to act). m While there are certainly cases in which it is clear that a person lacks capacity for a decision, there is often a large grey area as well. This is especially true for progressive conditions, in which a person's capacity may vary day to day or for whom there may be periods of lucidity alternating with periods of clear incapacity. 162 See In re Estate of Romero, 126 P.3d 228, 231 (Colo. Ct. App. 2005) ("The appointment of a conservator or guardian is not a determination of testamentary incapacity of the protected person."); Hoffman v. Kohns, 385 So. 2d 1064, 1068-69 (Fla. Dist. Ct. App. 1980) (nullifying will while upholding marriage of senile man who married his housekeeper and then wrote a will a day later); In re Nelson, 891 S.W.2d 181, 188 (Mo. Ct. App. 1995) ("The existence of a conservatorship does not necessarily preclude the capacity to make a will."); see also Lawrence A. Frolik & Mary F. Radford, "Suf'f'icient" Capacity: The Contrasting Capacity Requirements f'or Dif'f'erent Documents, 2 NAT'L ACAD. ELDER L. ATTYS J. 303, 305 (2006) ("If legal capacity lies along a spectrum, testamentary capacity is at the lower end."); Warren F. Gorman, Testamentary Capacity in Alzheimer's Disease, 4 ELDER L.J. 225, 234-35 (1996) (noting that one may retain testamentary capacity in the early stages of Alzheimer's disease).

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certainly does not eliminate the situations in which a ward has clearly lost decisional capacity and cannot make those decisions for herself. The other way to address this concern would be to shift to a guardianship system that is more supportive of ward decision-making and is less totalizing."' Other countries, such as Sweden and Japan, have structured their guardianship systems to make the surrogate more of a mentor or assistant, rather than a substitute decision-maker. 164 These approaches best safeguard the capabilities of those with cognitive impairments, as they try to facilitate choice in various life domains. Nevertheless, while this type of reform would be ideal, several intermediate and perhaps more attainable steps would still enhance the capabilities of people with disabilities under guardianship in the United States. There have been a host of proposals over the past thirty years, some of which have enjoyed modest success in various states. These include continuing to foster limited guardianships and defining incapacity in a domain-specific way (so as not to infringe on areas in which wards still retain decisional capacity)/ instituting mediation techniques to adjudicate guardianship petitions (which may allow more flexible and creative solutions to problems of decisional incapacity within families)/ 66 and restricting emergency guardianshipS. 167 66

2. Guarding the Guardians While guardianship reforms and increased personal delegations address the basic need to recognize the dignity of 166 See Nina A. Kohn et a!., Supported Decision-Making: A Viable Alternative to Guardianship?, 117 PENN. STATE L. REV. 1111, 1120-28 (2013) (proposing such a system). 164 See Stanley S. Herr, Self-Determination, Autonomy, and Alternatives for Guardianship, in THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES:

DIFFERENT BUT EQUAL 431-35 (Stanley S. Herr et a!. eds., 2003) (describing the "god man," who acts more as an assistant than a plenary guardian); Israel Doron, Elder Guardianship Kaleidoscope-A Comparative Perspective, 16 INT'L J.L., POL'Y & FAM. 368, 376 (2002) (describing the "hojonin," or helper, for those who suffer from milder forms of intellectual disability, and with whom various decisions are jointly made with the ward). 165 See generally Lawrence A. Frolik, Plenary Guardianship: An Analysis, a Critique and a Proposal for Reform, 23 ARIZ. L. REV. 599, 654-55 (1981). 166 See Mary F. Radford, Is the Use of Mediation Appropriate in Adult Guardianship Cases?, 31 STETSON L. REV. 611 (2002). 167 See Jamie L. Leary, Note, A Review of Two Recently Reformed

Guardianship Statutes: Balancing the Need to Protect Individuals Who Cannot Protect Themselves Against the Need to Guard Individual Autonomy, 5 VA. J. Soc. POL'y & L. 245, 259 (1997).

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people with disabilities and facilitate their decisions, the following question still remains: what degree of oversight should govern the individuals or entities to whom personal decision-making authority is delegated? In other words, how do we guard the guardians? The guardian is the ward's agent, subject to the requirements of fiduciary law as well as monitoring by the appointing courl. 168 She must file initial and annual reports about the ward, and she is subject to removal for mismanagement or breach of fiduciary duty."' Any interested person, including the ward, may petition the court for removal of the guardian or modification of the guardian's powerS. 170 This level of oversight represents the baseline, and it is not particularly stringent.''' The court can also require an additional layer of oversight-namely, by requiring that the guardian receive advance judicial approval for certain types of actions.' This type of oversight is generally compulsory for "hot powers" in the financial realm whenever there is a high likelihood of decisional error. This risk of decisional error, combined with the importance of these decisions, justifies further oversight because of the potential harm to the ward. One way to recognize the potential risk of error is where a conflict of interest arises between the guardian and her ward. In fact, this is the operating principle for oversight in the law of trusts, where a trustee must secure advance judicial approval 72

168 See Lawrence A. Frolik, Is the Guardian the Alter Ego of the Ward?, 37 STETSON L. REV. 53, 85-86 (2007) (noting that the guardians. statutory surrogates, and agents acting under a durable power of attorney have the same responsibilities and fiduciary requirements). 169 See, e.g., GA. CODE ANN. § 29-4-22 (West 2012) (requiring the filing of an initial report within 60 days); N.D. CENT. CODE § 30.1-28-12 (2011) (requiring an annual report). These reports are generally read by judges, court staff, or outside experts, though sometimes they are not read at all due to poor funding of the guardianship system. See Sally Balch Hurme & Erica Wood, Guardian Accountability Then and Now: Tracing Tenets for an Active Court Role, 31 STETSON L. REV. 867, 90411 (2002). 170 See, e.g., UTAH CODE ANN. § 75-5-307(1) (West 2012) ("On petition of the ward or any person interested in the ward's welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward."). However, many states have still not implemented standards for guardian conduct and ethics, and many that have do not apply these standards to family guardians, making it difficult to know or punish breaches of fiduciary duty. See generally Karen E. Boxx & Terry W. Hammond, A Call for Standards: An Overview of the Current Status and Need for Guardian Standards of Conduct and Codes of Ethics, 2012 UTAH L. REV. 1207 (2012). 171 But see Hurme & Wood, supra note 169, at 901 (arguing that the requirement of filling out reports can have a "sentinel effect" by making guardians aware that the court will hold them accountable). 172 See, e.g., FLA. STAT. ANN. § 744.3725 (West 2012) (outlining the procedure for authorization of "extraordinary authority").

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to engage in a conflicted transaction."" The presence of a conflict of interest is concerning because it suggests that the decision being made could harm the ward. That is, the decisions will represent the interests of the surrogate decisionmaker rather than the ward, which may be problematic because it ignores the past preferences or present interests of the ward. Thus, the presence of a conflict serves as a red flag that a bad decision might be coming down the pipeline. 174 In one sense, family guardians making surrogate decisions are likely to be free from serious conflicts. Familial ties will often (although not always) create an alignment of interests between the family guardian and the ward. In other words, the family guardian will benefit psychologically when the ward's known preferences are satisfied or when the ward is doing well. At the same time, family guardians may find themselves in conflicted positions. For example, their financial position may change through the exercise of a personal decision that impacts how the ward's resources will be distributed at death. Similarly, family guardians are also caregivers and may view their duties as imposing a cost more than bestowing a benefit. As a result, they may exercise personal decisionmaking authority to minimize their care duties rather than implement the ward's preferences or safeguard the ward's interests. Finally, family guardians may have preexisting opinions or resentments about the ward's personal decisions about her body, identity, or intimate associations, and they may wish to reverse those decisions if given the power to do so. On the other hand, professional guardians are unlikely to be conflicted in the same way, although they may have incentives to make personal decisions in a manner that maximizes profits or implements their social missions. The presence of these incentives may also put them at odds with the ward's preferences or interests. A standard conflict-of-interest analysis may not capture the entire universe of decisions that should be subject to 173 See John H. Langbein, Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?, 114 YALE L.J. 929, 965-67 (2005) (explaining how the judicial approval mechanism derives from the equitable "petition for instructions"). 174 The presence of a conflict does not necessarily mean that a particular decision-maker should be disqualified or is a poor choice for the job. See Adrian Vermeule, Contra Nemo Judex in Sua Causa: The Limits of Impartiality, 122 YALE L. J. 384, 389-90 (2012) (arguing that conflicts of interest should not immediately foreclose delegation of decision-making authority and must be balanced against the benefits of delegating to that particular entity).

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judicial review in a personal delegations regime. This stems from the fact that conflicts are more likely to take nonpecuniary forms in the context of surrogate decision-making on personal matters. Thus, they are harder to detect and regulate. Courts should try to detect these hidden conflicts by examining the exercise of decision-making authority under the substituted judgment or best interests standards. For example, a surrogate's decision may imply a preference for an outcome that is unlikely to have been held by the ward because a strong consensus favors a status quo outcome in a wide range of likely circumstances. 175 Under substituted judgment, this should be a red flag that a hidden conflict of interest might be at work. In other words, because it is highly unlikely that a ward would have exercised decision-making authority in the same way herself, the surrogate's exercise of authority is suspect. Alternatively, under a best interests analysis, a court should suspect the exercise of personal decision-making authority by a surrogate when there are few situations one can imagine in which taking such a decision would advance the ward's interests. Consider the decision to marry. In normal circumstances, most wards probably would not wish for their guardians to marry them off to someone while they lacked capacity. Assuming that marriage is more of an individual as opposed to a familial or cultural choice, it is difficult to imagine circumstances in which it would advance the objective interests 175 The range of likely circumstances must include possible changed circumstances, which can take many forms. Something might change in the ward's immediate situation that might lead to a need for a decision to be made. This is clearest in the health-care arena, as it is difficult to predict one's health status in advance, given unknown genetics and environmental factors. See Einer Elhauge, Allocating Health Core Morally, 82 CALIF. L. REV. 1449, 1479 (1994) ("[I]n contrast to other needs, the need for health care is unpredictable."). Something might change about the situations of persons for whom the ward cared or would care that could be considered under an expanded best interests analysis. In fact, this is the type of situation that birthed the substituted judgment doctrine. Ex porte Whitbreod involved a wealthy but decisionally incapable man, and his niece who requested some portion of his estate to which she was not legally entitled. [1816] 35 Eng. Rep. 878 (Ch.) 878-79. The Chancellor decided to give her some portion of the estate, reasoning that the man would not have wanted his relations to be beggars and bring disrepute to his family. See id. at 879-80; see also Harmon, supra note 108, at 19. Finally, something might change about the context in which the ward operates that would create a desire to make a decision in a given personal domain. A state legislature or Congress may alter one of the default rules in a decisional domain, or the legal effect of a preexisting decision. See David A. Super, The Political Economy of Entitlement, 104 COLUM. L. REV. 633, 712-24 (2004) (describing the debates over means-tested public benefits programs, which often lead to changes in eligibility criteria). Alternatively, a technological change may alter the option set for wards, which is a common occurrence in the health-care arena.

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of a ward to marry another person. Thus, the court should review this exercise of surrogate decision-making authority with suspicion, although there may be scenarios where a surrogate's exercise of the right to marry would be justified.'" While conflicts of interest or suspect exercises of decision-making authority call for judicial review, the question whether courts have the institutional competence to review such decisions remains. For financial transactions that require advance judicial approval, the court has some ability to sort through the evidence to determine whether an action is appropriate. For instance, a judge is fully competent to determine whether giving gifts out of the estate is consistent with practices before incapacity or if it will have positive benefits from a tax law perspective. The same is not necessarily true of many of these personal decisions, since the preferences underlying them may be idiosyncratic or unrevealed, and the objective interests of the ward may be difficult to ascertain. This is not to say that courts lack all evaluative capacity, but it does suggest that a more deferential posture might be appropriate when evaluating petitions for advance judicial approval of most types of personal decision-making.m 177

176 For example, an individual who is on the way to her wedding might suffer an accident. It is quite possible that such a ward would desire her incapacitated self to be married off by her guardian to her intended spouse, if the spouse was still willing. Thus, the decision to marry, even taken by a surrogate, would be justified under a substituted judgment approach. It may even be justifiable under a broader best interests test. See Whitton & Frolik, supra note 105, at 1512 (describing how an expanded best interests model "may include consideration of consequences for significant others if a reasonable person might ordinarily consider such consequences."). In this type of analysis, it would be appropriate to take into account the spouse-to-be's interests in fulfilling the promise of marriage. Another scenario might involve a same-sex couple that desired to get married but did not live in a state that allowed same-sex marriage until one member of the couple lacked decisional capacity. Having a guardian authorize such a marriage would be justified using the same reasoning described above. The factual circumstances that would justify the exercise of marital decision-making authority are certainly rare though. Not many people suffer from accidents on their wedding day or become cognitively impaired before they acquire the right to marry. 177 The institutional competence literature traditionally compares courts to other governmental institutions, such as administrative agencies or the elected branches. See, e.g., Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 GEO. L.J. 347 (1994); Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 IOWA L. REV. 941 (1999); Nicholas S. Zeppos, Deference to Political Decisionmakers and the Preferred Scope of Judicial Review, 88 Nw. U. L. REV. 296 (1993). The comparator here is different-a surrogate decision-maker who is usually a family member-but such a surrogate may have distinct advantages over judges in knowledge of the ward's preferences and the ward's current situation. 178 See, e.g., Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 53-54 (2007) (discussing deference in the context of agency action and inaction); Kathryn Kovacs, Leveling the Deference Playing

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Preliminary Applications

This subpart will examine personal delegations in the three illustrative areas discussed earlier. The aim is to establish a process for evaluating different decisional domains and sketch out the contours of personal delegations regimes in the domains of divorce, wills, and health care in particular. The first step in assessing a decisional domain is to evaluate whether the decision falls into the set of those deemed personal by the particular normative theory being applied. This article employs the capabilities approach as its primary normative theory, and the three decisions at issue are connected to fundamental human capabilitieS. 179 The second step is to evaluate which delegation mechanisms would be appropriate and, specifically, whether the mechanism of statutory surrogacy is warranted because emergency decisions must be made. The third step is to evaluate the likelihood that conflicts will arise for common decision-makers in each domain, who will most often be family members although increasingly may be nonprofit, private, or public guardians. Finally, one must take into account any special features of the domain that might impact the analysis. 1. Divorce

While there are certainly harms that might be associated with continuing marriage, they are not necessarily of a type that would require an emergency divorce. This is because several legal mechanisms exist to deal with the most harmful of abusive situations, at least on a temporary basis.''o Thus, statutory surrogacy is unnecessary in the divorce domain, as surrogate decision-making can be handled through durable powers of attorney and guardianship. Field, 90 OR. L. REV. 583 (2011) (same). Another way of preventing abuse would be to

change the burden of proof for the surrogate decision-maker who desired to make a personal decision for the ward. As noted earlier, this has been the strategy in some states with regard to withdrawals oflife-sustaining treatment. See supra Part I.B.3. 179 See generally supra Part I.B. It is likely that all three decisions would be considered personal under a substituted judgment approach, but the best interests approach might encompass a narrower range of personal decisions, depending on the theory of welfare used. 180 See generally JaneK. Stoever, Freedom from Violence: Using the Stages of Change Model to Realize the Promise of Civil Protection Orders, 72 OHIO ST. L.J. 303 (discussing the advantages and disadvantages of civil protection orders to prevent domestic violence).

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An advance delegation through a durable power of attorney should specifically authorize the divorce decision as well as the ability to self-deal. Surrogates may benefit from a divorce action, especially if they are adult children who would be entitled to a larger inheritance if their parents were divorced. On the other hand, if no conflicts are present, judicial approval is likely unnecessary since various factual situations might justifY divorce, such as abuse or the need to segregate assets in order to qualify for certain public benefits programs. 181 These circumstances sometimes lead individuals with decisional capacity to seek a strategic "Medicaid divorce" to separate assets from their spouse and establish eligibility for Medicaid or other public assistance programs. Moreover, advance judicial approval is superfluous because a divorce action already takes place within the context of a legal proceeding, where the other party most affected by the divorce decision-namely, the spouse-is already involved. As such, the spouse will be on notice and can raise arguments about the guardian's impropriety with the probate court if necessary. 1 "

2. Wills As with divorce, there is likely no situation that would require an emergency willmaking, so delegation should be permitted only in advance by durable power of attorney or through guardianship after decisional incapacity strikes. If a durable power of attorney specifically granted the power to craft a will and permitted self-dealing with respect to willmaking, then no advance judicial approval should be required. Guardianship, however, presents a different scenario. Many family guardians will have conflicts of interest by virtue 181 For example, consider Medicaid, which funds a substantial amount of the country's long-term health care. See LAURA SUMMER, GEORGETOWN UN!V. LONG-TERM CARE FIN. PROJECT, MEDICAID & LONG-TERM CARE (Jan. 2007), available at http:l/ltc.georgetown.edu/pdfs/medicaid2006.pdf. As a means-tested program, Medicaid takes account of an individual's income and assets to see if they qualify for assistance. Id. As recently as 2005, Congress changed the eligibility criteria for Medicaid, making its provisions more stringent for those who gave away assets in order to qualify. See Monica J. Franklin, How the Deficit Reduction Act of2005 Affects Medicaid Recipients, 42 TENN. B .•J., May 2006, at 18-19 (describing how the Deficit Reduction Act of 2005 increased the Medicaid look-back period for gift-giving to sixty months). 182 See Lee Anne Fennell, Relative Burdens: Family Ties and the Safety Net, 45 WM. & MARY L. REV. 1453, 1457-58 (2004) (describing the phenomenon of Medicaid divorce as a strategic choice for managing caregiving burdens); Hal Fliegelman & Debora C. Fliegelman, Giving Guardians the Power to Do Medicaid Planning, 32 WAKE FOREST L. REV. 341, 359-61, 364 (1997) (same).

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of their status as potential heirs, suggesting that advance judicial approval should be required. Despite this, a guardian's exercise of willmaking authority is not inherently suspect because a nontrivial number of testators may have preferences for disposition of assets that vary from the intestacy rules, and certain circumstances may warrant willmaking for estate planning purposes. Moreover, the court likely possesses sufficient competence to review evidence of the ward's prior wishes and assess the tax or other legal advantages to crafting a will. Accordingly, no particular deference is owed to the guardian decision-maker. Delegation of authority in the willmaking context would also have the benefit of harmonizing the peculiar situation that currently exists within trusts and estates law, where wills and will substitutes are treated differently for purposes of delegation despite being functionally identical. Indeed, the creation of a trust arguably has a more immediate effect on an estate, since it transfers assets from the probate estate during the ward's lifetime, whereas the will's power is only exercised at the death of the ward. If guardians have access to the former tool, then providing access to the latter for estate planning purposes would not mark a revolutionary change. 3. Health Care Health care is a broad domain that encompasses a wide variety of decisions regarding medical care and treatment. Medical emergencies are common enough that this domain requires a mechanism for the clear and rapid designation of a surrogate decision-maker. This feature explains and justifies why surrogacy statutes arose in the health-care domain, although these statutes can also be complemented by other legal delegation mechanisms, such as the health-care power of attorney or guardianship. For most of the decisions in this domain, family guardians are unlikely to be conflicted because they lack incentives to restrict ward treatment and likely wish to extend the life and health of the ward. There is also nothing inherently suspect about the exercise of decision-making authority in this domain, since most wards would actually prefer treatment to nontreatment. Conflicts may arise, however, in the case of lifeor-death decisions, since death triggers a series of legal consequences, such as inheritance. Normally, this would imply that advance judicial approval should be required for these

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decisions. The health-care domain is unique, however, in that the decisions that compose it are already subject to oversight by the medical profession. It is therefore unclear that adding an additional layer of judicial review would add anything except additional process. On the other hand, if there is reason to believe that the medical profession is insufficiently protective of the ward's capabilities for certain decisions, then judicial intervention may be appropriate. In addition, if there is a conflict among family members, or if members of the medical profession request judicial intervention, then the court should adjudicate the matter, with proper deference to the designated decision-maker. CONCLUSION

Many of us will have personal experience with decisional incapacity during our lifetime, either by acquiring cognitive impairments as we age or serving as a surrogate for someone who needs assistance. These abilities to receive and provides care are currently inhibited by legal doctrines that sever people with cognitive impairments from decisions that inhere in their fundamental human capabilities. This article has critiqued the use of the concept of the personal to justify a nondelegation rule in the case of decisional incapacity. Personal delegations should be permitted through private or public mechanisms, accompanied by reforms of guardianship and judicial review in cases where conflicts of interest are present or the exercise of decision-making authority is inherently suspect. These issues cannot be avoided or ignored, and our institutional legal structures must adapt to the sociolegal changes inherent in personal delegations law.

[4] ANIMALS AS VULNERABLE SUBJECTS: BEYOND INTEREST -CONVERGENCE, HIERARCHY, AND PROPERTY By Ani B. Satz* This Article presents a new paradigm, premised on the equal protection principle, for the legal regulation of human interactions with domestic animals: Equal Protection ofAnimals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals-like humans-have claims to food, hydration, shelter, bodily integrity (including avoiding pain), companionship, and the ability to exercise and to engage in natural behaviors of movement. Existing animal welfare and anti-cruelty laws, despite their stated purposes, fail to protect animals adequately. This Article identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest convergence results in what I term "legal gerrymandering for human interest," or the redrawing of the natural baseline of

* Ani B. Satz is an Associate Professor at Emory University School of Law, Rollins School of Public Health, and the Center for Ethics. She holds a J.D. from the University of Michigan School of Law and a Ph.D. in philosophy from Monash University, Melbourne, Australia, which she completed at Princeton University. The author is extremely grateful to Taimie Bryant, David Cassuto, Robert Schapiro, and Fred Tung for their detailed comments on earlier versions of this Article. In addition, this Article benefits from the input received at Yale University, University of California-Los Angeles, Emory University, and Florida State University Law Schools as well as at the Law and Society, Southeastern Association of Law Schools, and International Research Group in Animal Law Conferences. In particular, the author would like to thank the following individuals who have influenced the development of this work: David Bederman, Dorothy Brown, Bill Buzbee, David Favre, Martha Fineman, Rebecca Russ, Nancy Levit, Joel Marks, Tom McAffee, Jonathan Nash, Michael Perry, Polly Price, Bill Reppy, Julie Seaman, Charlie Sharrar, Marianne Sullivan, and David Wolfson. The author is deeply indebted to Peter Singer, whose long-term mentorship influences this and other related scholarship. The author would also like to thank Vanessa King for her excellent library assistance as well as Meg Kochuba and Sarah McKenney for their fine research assistance.

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protections for animals to further human use of animals. In addition to un· dermining fundamental protections for animals against abuse and suffer· ing, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, I address differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in animal law as opposed to other legal contexts. While some scholars seek to address the problem of inadequate animal pro· tections, their proposals-treating animals as legal persons or quasi prop· erty-suffer two shortcomings. First, under traditional rights· and interests-based reforms, strong human rights or interests in using animals will always trump animal rights or interests, even with regard to avoiding some types of suffering. Second, existing scholarship is entrenched in a par· alyzing debate about whether categorizing animals as "persons" instead of "property" will improve their legal protections. EPA does not have these lim· itations. EPA seeks to maximize the basic capabilities of human and nonhu· man animals within the same population, addressing the hierarchy problem that human rights and interests are privileged over those of ani· mals. Human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to category; there is no need to categorize animals as persons or as a special form of property.

I. II. III.

IV. V. VI.

VII.

OTHER

INTRODUCTION ......................................... 67 MORAL OBLIGATIONS TO ANIMALS .................... 74 A. Current Approaches ................................... 75 B. Animals as Vulnerable Subjects ........................ 78 LEGAL GERRYMANDERING FOR HUMAN INTEREST ... 80 A. Undermining Fundamental Protections ................. 83 1. Privileging Human over Animal Interests in the Development of Laws Pertaining to Animals ......... 83 2. Reinterpreting Laws in Light of Human Uses of Animals ........................................... 86 3. Using Human Interest in Animals to Resolve Legal Conflict ........................................... 89 B. Creating Legal Inconsistencies .......................... 92 1. Animals Sharing the Same Legally Created or Species Category ................................... 92 2. Animals of Different Species with Similar Abilities ... 95 3. Role of Scientific Evidence .......................... 99 LESSONS FROM HUMANE LABELING AND OTHER MORAL COMPROMISES ................................. 101 OF LEGAL SOLUTIONS .............. 105 EQUAL PROTECTION OF ANIMALS PARADIGM ......... 110 A. Equal Claims to Basic Capabilities ..................... 110 B. Capability Approaches and Equal Protection ............ 111 1. Capabilities as Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 2. Capabilities as Functionings ........................ 113 C. Extending Capabilities to Nonhuman Animals . .......... 114 IMPLICATIONS OF EXTENDING EQUAL PROTECTION . 117 A. "They are just animals, and, without us, they would not exist." ................................................ 118

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B. Inevitable Conflicts and the Need to Start with Basic Capabilities ........................................... 118 C. Equality and the Decline of Human Exploitation of Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 VIII. CONCLUSION ........................................... 121

I.

INTRODUCTION

Human relations with domestic animals-companion, factory farm, and laboratory animals-are based on contradiction. We coddle them, eat them, leave our estates to them, 1 experiment on them, buy them designer collars and clothes, wear them, risk our lives for them, 2 and abandon and kill them. These contradictions are entrenched in a sprawling body of law regulating human use of animals as property. Animals receive legal protections only when their interests align with human interests. 3 Consider the following examples. Animals are not slaughtered prior to being "rendered insensible" 4 because of the 1 Leona Helmsley recently left $12 million in trust to her Maltese, Trouble, and millions for her brother, Alvin Rosenthal, who is named in her will as Trouble's caretaker. Washington Post, Helmsley's Dog Gets $12 Million in Will, http://www.washingtonpost.com/wp-dynlcontent/article/2007/08/29/AR2007082900491.html (Aug. 29, 2007) (last accessed Nov. 22, 2009). The Manhattan Surrogate Court reduced Trouble's trust to $2 million. Leona Helmsley's Dog Loses All but $2 Million, 157 N.Y. Times B6 (June 17, 2008) (available at http://www.nytimes.com/2008/06/17/nyregion/17trouble.html (June 17, 2008) (last accessed Nov. 22, 2009)). 2 People in Louisiana and Mississippi who refused to evacuate their homes because shelters would not allow pets died during Hurricane Katrina. See e.g. Shaila Dewan & Janet Roberts, Louisiana's Deadly Storm Took Strong as Well as the Helpless, 155 N.Y. Times Sec. 1, pp. 1, 46 (Dec. 18, 2005) (available at http://www.nytimes.com/2005/12/18/ national/nationalspecial/18victims.html (Dec. 18, 2005) (last accessed Nov. 23, 2009)); Sewell Chan, Portrait of Mississippi Victims: Safety of Home Was a Mirage, 155 N.Y. Times A1, A18 (Sept. 27, 2005) (available at http://www.nytimes.com/2005/09/27/national/nationalspecial/27mississippi.html (Sept. 27, 2005) (last accessed Nov. 22, 2009)). 3 The ontology of the human impetus to disregard animal interests is unclear. It may be attributed to early religious thought embracing human dominion over animals. See Genesis 1:26 (King James). Some early philosophers also disregarded animals. The Stoics, possibly shaping the development of religious views about animals, believed humans did not possess moral obligations towards animals lacking the ability to engage in ethical decision-making or virtuous activity. Richard Sorabji, Animal Minds and Human Morals: The Origins of the Western Debate 20-21 (Cornell U. Press 1993). Later philosophers, like Rene Descartes, believed animals were machines without consciousness that could be dismantled, reconstructed, and discarded. Rene Descartes, Discourse on the Method of Rightly Conducting the Reason, and Seeking Truth in the Sciences 58-62 (John Veitch trans., Open Court Publg. Co., n.d.). Immanuel Kant argued humans have only an indirect duty to animals to treat them humanely, as cruelty to animals undermines human moral character. Immanuel Kant, Lectures on Ethics 239-41 (Louis Infield trans., Methuen & Co. Ltd. 1979). On a less foundational level, contemporary commentators argue that it is the legal treatment of animals as property or the methods of efficient production of consumer goods that result in the use of animals for human interest. See infra Part V. These legal and economic arguments may have roots in religion or philosophy. 4 Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1907, at § 1902 (2006 & Supp. 2008).

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cruelty involved as well as the reduced hazard for slaughterhouse workers, efficiency in processing, and economic gains associated with decreased bruising of flesh foods. 5 Downed- pigs and sheep (animals too sick to stand) are not dragged or hauled to· slaughter unless an inspector deems them fit for human consumption. 6 Animals in laboratories are entitled to enough shelter and food to keep them alive to facilitate research. 7 Companion animals are protected against cruelty in every state because of a desire to prevent harm to them8 as well as the value humans place on their relationships with them 9 and the link between animal cruelty and violence against humans. 10 Derrick Bell famously described this phenomenon-of a privileged group providing legal protections to a disadvantaged group when it 5 See H.R. Rpt. 95-1336 at 3 (July 10, 1978) (reprinted in 1978 U.S.C.C.A.N. 2650); see also Humane Methods of Slaughter Act, Hearings on S.R. 3092 before the Committee on Agricultural Research and General Legislation, 95th Cong., 2d Sess. 30 (1978) (statement of Temple Grandin). Rendering animals insensible prior to slaughter also benefits employers and consumers because it reduces bruising of meat. Id. at 20-29 (Livestock Conserv., Inc., Livestock Safety is a $61,000,000 Word: "potential annual savings ... of $46,000,000 [for avoiding bruising alone]"). 6 21 U.S.C. § 603 (2006 & Supp. 2007). Ill cattle are no longer slaughtered due to fear that disease will go undetected. See infra nn. 89, 210 and accompanying text. 7 7 U.S.C. §§ 2131-2159 (2006 & Supp. 2008). 8 See e.g. Mass. Gen. Laws ch. 272 § 77 (current through 2009 Legis. Sess.) (outlawing "overdriv[ing], overload[ing] ... overwork[ing], tortur[ing]. torment[ing], depriv[ing] necessary sustenance, mutilat[ing] or kill[ing] ... bait[ing] ... and willfully abandon[ing]" companion animals); N.Y. Agric. & Mkts. L. § 353-a(1) (McKinney current through Oct. 28, 2009) (outlawing killing or physical injury to a companion animal that causes "extreme physical pain" or is done "in an especially depraved or sadistic manner"); Ohio Rev. Code Ann. § 959.131(8) (Lexis current through Nov. 10, 2009) ("No person shall knowingly torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against a companion animal."); 18 Pa. Consol. Stat Ann.§ 5511(c)(l) (current through 2009 Reg. Sess.) ("A person commits an offense if he wantonly or cruelly illtreats, overloads, beats, otherwise abuses ... or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons ... or deprives any animal of necessary sustenance, drink, shelter, or veterinary care, or access to clean and sanitary shelter .... "); Tenn. Code Ann. § 39-14-202(a) \Lexis current through 2009 Reg. Sess.) (outlawing "tortur[ingl, maim[ing], or grossly overwork[ing]," neglecting, abandoning, or cruelly "transport[ing] or confin[ing]" a companion animal). 9 Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479, 526-27 (2004). Given the value of companion animals to humans, it is unsurprising that the law evolved to recognize loss of companionship and emotional distress claims to compensate humans for their loss. Id. at 517-20, 527. 10 See e.g. Frank R Ascione, Claudia V. Weber & DavidS. Wood, The Abuse of Ani· mals and Domestic Violence: A National Survey of Shelters of Women Who Are Battered, 5 Socy. & Animals J. Human-Animal Stud. 205 (1997) (Women in 85.4% of forty-eight domestic abuse shelters surveyed reported companion animal abuse by their abuser.). See also Am. Psychiatric Assn., Diagnostic and Statistical Manual of Mental DisordersIV 94, 97 (4th ed., text rev. 2004) (discussing conduct disorder, a prerequisite to antisocial disorder, as involving cruelty to animals); Arnold Arluke et al., The Relationship of Animal Abuse to Violence and Other Forms of Antisocial Behavior, 14 J. of Interpersonal Violence 963 (1999) (discussing animal abuse as associated with antisocial behaviors towards humans, though not necessarily as a precursor to them).

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supports the interests of the privileged-as interest-convergence. 11 Bell argued in the context of desegregation that whites opposed segregation "not simply [because of] the immorality of racial inequality, but [because of] . . . the economic and political advances at home and abroad that would follow abandonment of segregation." 12 Whites knew that desegregation would aid U.S. foreign policy, black soldier morale in the wake of World War II, and the economic development of the South.l 3 When the interests of whites and blacks diverged, the reach of Brown u. Board of Education and school desegregation was limited. 14 In 1977, a mere twenty-three years after Brown, the U.S. Supreme Court held that segregation could be justified if it was not intentional or condoned by the school. 15 This decision undermined busing plans vital to the implementation of Brown, and desegregated schools began to re-segregate, black students faced higher rates of suspension and expulsion than white students, and school districts witnessed white flight from integrated schools as well as a dearth of black teachers and administrators.1a Animal laws are also the product of interest-convergence. Despite their nomenclature, animal welfare and anti-cruelty statutes protect human as well as animal interests. The problem with providing animal protections in this manner is that when human and animal interests conflict, animal protections are reduced or eliminated to facilitate human use of animals. Even one of the most basic animal interestsavoiding suffering-is ignored. Animals are anally shocked to death, drowned, suffocated, or gassed, so as not to damage their furs for fashion garments; 17 subject to invasive experiments without appropriate pain relief or sedation to prevent drug interference with experimental results; 18 tethered on short leads without sufficient shelter, food, or 11 Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Di· lemma, 93 Harv. L. Rev. 518, 523 (1980). 12 Id. at 524. 13 Id. at 524-25. 14 Id. at 525-26. 15 Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977); see also Bell, supra n. 11, at 527. 16 Bell, supra n. 11, at 531-32. 17 See e.g. Humane Socy. of the U.S., How Do Fur Animals Die?, http://www.hsus .org/furfree/news/how_do_fur_animals_die.html; select download the PDF (1998) (last accessed Nov. 23, 2009). Globally, 85% of "wild" animals used for furs are farmed. See Humane Socy. of the U.S., Dying for Fur: Recent Investigation Shows Cruelty at Chinese Fur Farms, http://www.hsus.org/about_uslhumane_society_international_hsi!cruelty _issues_around_the_world/dying_for_fur_recent_investigation_shows_cruelty_at_chinese_fur_farms.html (last accessed Nov. 22, 2009). In China, animals are often skinned alive. Id. 18 See Animals and Animal Products, 9 C.F.R. § 2.36(b)(7) (2008) (requiring that research facilities annually report "the common names and the numbers of animals upon which teaching, experiments, research, surgery, or tests were conducted involving accompanying pain or distress to the animals and for which the use of appropriate anesthetic, analgesic, or tranquilizing drugs would have adversely affected the procedures, results, or interpretation of the teaching, research, experiments, surgery, or tests"); see

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water for the entirety oftheir lives as guard animals; 19 and intensively confined in dark, windowless warehouses for efficient meat production20 after being routinely castrated, 21 de-beaked, 22 and de-toed without anesthesia.23 In the animal law context, interest-convergence gives rise to a· problem I term "legal gerrymandering for human interest." 24 Legal gerrymandering is when the natural baseline for the legal protection of animals-premised on their inherent capacities-is redrawn to facilitate human use of animals. When human and nonhuman animal interests diverge, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. For example, dogs are protected under state animal anti-cruelty statutes based on their capacity to suffer. 25 Due to their scientific and educational utility, however, dogs who are not pets 26 are routinely intensively conalso Humane Socy. of the U.S., Taking Animal Welfare Seriously: Minimizing Pain and Distress in Research Animals, http://www.hsus.org/web-files/PDF/ARI/White_Paper _TakingAnimalWelfareSeriously.pdf (last accessed Nov. 22, 2009) (estimating 20-35% of laboratory animals suffer pain and distress due to withholding of drugs). 19 Only the most egregious cases are prosecuted. See e.g. Ferrell v. Soto, 2008 U.S. Dist. LEXIS 8250 at *8 (N.D. Ill. Feb. 5, 2008) (discussing dogs "restrictively chained" outside of a trailer in a used car lot who had neck sores and labored breathing and were surrounded by dried feces); Ohio v. Jose Vasquez, 1998 Ohio App. LEXIS 2389 at *6 (June 5, 1998) ("The testimony in the transcript, taken as a whole, shows that the dog was always seen chained to the tree, in varying degrees of mud, without access to food and water and without shelter."). 20 See e.g. Humane Socy. of the U.S., An HSUS Report: The Welfare of Animals in the Broiler Chicken Industry, http://www .hsus.org/farm/resources/research/welfare/ broiler_industry.html (last accessed Nov. 22, 2009) (discussing the intensive confinement conditions of broiler chickens); see also Ian J.H. Duncan, Animal Welfare Issues in the Poultry Industry: Is There a Lesson to Be Learned?, 4(3) J. Applied Animal Welfare Sci. 207, 208 (2001) (discussing the conditions of egg-laying hens). 21 See e.g. infra nn. 124-26 and accompanying text. 22 See id. (The ends of their beaks are cut off.). 23 See id. (The ends of their toes are removed.). 24 The analogy to gerrymandering focuses on redefining a natural baseline to benefit a particular group. Redefining the baseline enables the lines of permissible use of animals to be redrawn in certain contexts. I do not intend to invoke other aspects of the term that are relevant in the voting context. It is interesting to note that the etymology of "gerrymander" is a combination of the name of early Massachusetts Governor Elbridge Gerry and "salamander." An election district redrawn in 1812 in Massachusetts was believed to resemble the appearance of a salamander. Gary Cox & Jonathan Katz, Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution 3 (Cambridge U. Press 2002). 25 See supra n. 8 and sources contained therein. 26 See e.g. Mass. Gen. Laws ch. 272 § 77 (current through 2009 Legis. Sess.) (outlawing cruelty by "owner, possessor, or person having the charge or custody of an animal"); Ohio Rev. Code Ann. § 959.131(C) (Lexis current through Nov. 10, 2009) (pertaining to animal "custodian or caretaker"); 18 Pa. Canso!. Stat. Ann.§ 55ll(a)(2.1)(i)(A) (current through 2009 Reg. Sess.) (outlawing cruelty to dogs and cats "belonging to himself or otherwise"); Tenn. Code Ann. §§ 39-14-202(a)-(b) (Lexis current through 2009 Reg. Sess.) (referring to both animals in custody and other companion animals more generally).

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fined and suffer invasive experiments in both laboratory and medical training contexts. 2 7 In addition to undermining fundamental protections for animals, legal gerrymandering creates inconsistencies. Animals with the same capacities, often within the same species or legal class, are treated differently. These inconsistencies undermine the form and function of animal laws, making it difficult for owners, users, and advocates of animals alike to understand the legal boundaries of human behaviors affecting animals. Since legal gerrymandering alters the baseline upon which animal protections are premised, the problems it creates are not easily remedied. Interest divergence requires refocusing existing law on enforcing the interests of a protected, disadvantaged group. 28 For example, in the desegregation context, Bell argues against the backdrop of civil rights legislation that there is a need to refocus social and political institutions on the right to education. 29 As a result oflegal gerrymandering to benefit humans, however, there is no baseline of rights for animals upon which to refocus. In order to address the damage oflegal gerrymandering, it is necessary to reestablish fundamental legal protections for animals based on their inherent capacities. Various scholars recognize that animal welfare laws do not adequately protect animals and propose frameworks to offer more meaningful protections. 30 Such scholarly efforts are unable to overcome significant problems, however. First, under rights- and interestsbased approaches, a hierarchy problem arises: Due to the higher capacities of humans, their rights or interests in using animals will always trump those of animals, even with regard to avoiding suffering in some contexts. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as "persons" instead of "property" will improve their legal protections. Thus, current law and scholarship fail to provide mechanisms to protect animals sufficiently and to avoid legal inconsistencies in their treatment. In this Article, I propose a new legal paradigm for the regulation of human interaction with domestic animals based on the principle of equal protection that "like beings should be treated alike" to 27 See e.g. Ohio Rev. Code Ann. § 959.131(D) (Lexis current through Nov. 10, 2009) (exempting companion animals used in scientific research from anti-cruelty provisions); Tenn. Code Ann. § 39-14-202(c) (Lexis current through 2009 Reg. Sess.) (same). 28 Bell, supra n. 11, at 532-33. 29 Id. 30 See e.g. Carter Dillard et al., Confronting Barriers to the Courtroom for Animal Advocates: Animal Advocacy and Causes of Action, 13 Animal L. 87, 95 (2006) (animals as "living property"); Gary Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement 4 (Temp. U. Press 1996) (animals as legal persons); Tom Regan, The Case for Animal Rights 150-94 (3d ed., U. Cal. Press (animals have inherent value and universal rights); Peter Singer, Animal Liberation 8 (3d ed., HarperCollins 2002) (animals must have equal consideration of interests to avoid suffering); Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals 63-88, 179-238 (Perseus Bks. 2000) (animals as legal persons).

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resolve these problems: the Equal Protection of Animals (EPA) paradigm.31 EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create an approach that recognizes the equal claims of human and nonhuman animals to protections against suffering. To be clear, my paradigm does not invoke Equal Protection Clause arguments. 32 Such arguments require that animals are recognized as persons, and I do not argue that the property status of animals should change. EPA provides equal treatment of domestic animals with like capacities by recognizing that human and nonhuman animals have equal 31 My approach is premised on the concept of equality and fairness that has been embedded in Western culture for thousands of years-from the Biblical Golden Rule to the concepts of equality and fairness offered by Aristotle, Rousseau, and Locke. See Lawrence Schlam, Equality in Culture and Law: An Introduction to the Origins and Evolution of the Equal Protection Principle, 24 N. Ill. U. L. Rev. 425,426 (2004). 32 Equal Protection Clause scholarship highlights the dangers of failing to consider directly the like interests of privileged and disadvantaged groups. As John Ely argued in his well-known interpretation of Carotene Products footnote four, malfunction in the political process occurs when "the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out" or those representing the privileged "are systematically disadvantaging some minority ... [resulting in) a refusal to recognize commonalities of interest." John Ely, Democracy and Distrust: A Theory of Judicial Review (Harv. U. Press 1980) (citing U.S. v. Carolene Prods. Co., 304 U.S. 144, 154 n. 4 (1938)). Judicial intervention may be necessary to promote equality when legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation," or affects discrete and insular minorities for whom prejudice may "seriously [I curtail the operation of [I political processes" upon which they rely for protection. ld. Unquestionably, legal gerrymandering excludes animals and their advocates from the political process. Animal capabilities and capacities to suffer are minimized by laws that favor agribusiness and pharmaceutical corporations that profit economically from animal use. See e.g. Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2006 & Supp. 2008); Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1907 (2006 & Supp. 2008). Most animal welfare statutes do not contain a private right of action, preventing animal advocates from enforcing the limited protections that exist. See Cass R. Sunstein, Standing for Animals, 47 UCLA L. Rev. 1333 (2000). Further, human consumptive preferences and other actions indicate that humans refuse to recognize the interests they share with nonhuman animals, such as interests in not suffering and having basic needs fulfilled. As a result, the means of protecting animals-animal welfare and anti-cruelty statutes-and the ends of animal protection do not match. If animals were treated as persons and not property under the law, one could argue that laws that seek to protect animals by allowing intensive confinement and invasive experimentation are not rational to achieve that purpose under the Equal Protection Clause. One could also argue that laws classifying animals based on their characteristics as nonhuman animals should be subject to strict scrutiny for the following reasons: Animals have a history of powerlessness and discrimination, they are subject to stereotypes about their cognitive abilities and their capacity to suffer is undervalued, and their species status is irrelevant to their capacity to suffer and is immutable. See Suzanna Sherry, Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction, 73 Geo. L.J. 89, 109-14 (discussing heightened scrutiny as applied to classifications). See also Ani B. Satz, Would Rosa Parks Wear Fur? Toward a Nondiscrimination Approach to Animal Welfare, 1 J. Animal L. & Ethics 139, 156-57 (discussing the underestimation of animals' abilities and their capacity to suffer).

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claims to realize certain basic capabilities. At a minimum, domestic animals must have the ability to intake necessary food and hydration, have necessary shelter and exercise and be able to engage in natural behaviors of movement, maintain bodily integrity (including avoiding pain inflicted on the body), and experience companionship. EPA requires that these basic capabilities of animals-human and nonhuman-are maximized within a given population, 33 whether it be a family, university, city, or state. 34 This entails a shift from the presumption that animals may be used for human purpose with some restrictions to a presumption against animal use absent justification. Animal use for human purpose is justified only if it also maximizes the enumerated basic capabilities for animals. This approach provides meaningful protections for animals and honors our moral obligations to them as vulnerable beings with the capacity to suffer. It also eschews legal inconsistencies by treating equally animals within legal and species categories as well as animals of different species with similar capacities. 3 5 In addition, EPA overcomes the hierarchy problem and moves past the debate over whether animals should be considered property. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population. Thus, human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to legal category, eliminating the need to recategorize animals as persons or as a special form of property to afford them greater protections. By focusing on sentient animals, or those with the capacity to suffer, the paradigm also avoids the practical difficulty of implementing theories that embrace a presumption against all animal use. To develop EPA, Part II discusses as a threshold matter arguments for the moral status of animals and why laws must protect animals. Applying aspects of Martha Fineman's vulnerability thesis to nonhuman animals, it establishes a novel approach to the moral status 33 But see Taimie L. Bryant, Similarity or Difference As a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected From Humans?, 70 L. & Contemp. Probs. 207 (2007) (arguing for a nondiscrimination approach that does not entail the maximization of capabilities). 34 My concept of populations is flexible, much like that of Michael Sandel's concept of community. Sandel argues that communities occur on "a continuum ... tribes, neighborhoods, cities, universities, trade unions, national liberation movements and established nationalisms, and a wide variety of ethnic, religious, cultural, and linguistic communities with more or less clearly defined common identities and shared purposes." Michael J. Sandel, Liberalism and the Limits of Justice 31 (2d ed., Cambridge U. Press 1998). Sandel considers only humans as community members, however. Id. 35 This approach does not, however, directly address animus or the cause of inequality. Rather, it speaks to a type of functional equality that recognizes interests in certain goods. This is a strategic move that I believe must be made in order to protect animals legally, as the vast amount of literature on animal suffering and four decades of extensive political activism have not prevented legal gerrymandering for human benefit and the exploitation of domestic animals.

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of animals based on universal vulnerability to suffering. This approach has the advantage over other dominant approaches to grounding the moral status of animals because, combined with the equal protection framework developed later in the Article, it avoids the hierarchy problem of privileging human suffering over animal suffering. Thus, animal welfare laws should protect animals on two grounds: It is the stated purpose of the laws, and such protections follow from the moral status of animals as vulnerable subjects. Parts III-V critique current animal welfare laws and proposed legal solutions. Part III argues that legal gerrymandering to benefit humans results in differential treatment of animals with the same capacities in three contexts: (1) the same legally-defined class, (2) the same species, and (3) across species. This Part discusses a particularly salient example of the effects of legal gerrymandering from the recent litigation over "humane" treatment of factory farm animals, where agricultural industry expert testimony about animal capacities is given greater weight than independent scientific opinions. Part IV discusses the failure of humane labeling and other compromises to afford equal treatment of morally relevant animal capacities. Part V examines existing proposals for law reform, ranging from changing the legal status of animals from property to persons or "living property," to a nondiscrimination approach that recognizes the right of all animals to noninterference. Working from the premise that animals are vulnerable subjects, Part VI presents a new paradigm for the legal regulation of domestic animals: Equal Protection of Animals. EPA combines the equal protection principle and capability theory to allow domestic animals equal claims to certain basic capabilities. EPA is a nondiscrimination approach that creates a presumption against use of animals who have the capacity to suffer. Prior to developing EPA, this Part discusses the capability approaches of Martha Nussbaum and Amartya Sen. Sen's approach is ultimately extended to the nonhuman animal context and used to inform the proposed paradigm. This Part concludes by applying EPA to six basic capabilities: the ability to be fed, hydrated, sheltered, and "clothed" (maintain bodily integrity, including avoiding pain inflicted on the body); to exercise and to engage in natural behaviors; and to have companionship. Part VII addresses the implications of EPA for dominant social views and practices, the ability of the paradigm to address possible conflicts between human and nonhuman animal capabilities, and the changes to legal structures required by EPA. II.

MORAL OBLIGATIONS TO ANIMALS

The moral status of animals informs whether they should receive legal protections, and, if so, the nature of those protections. Moral status may be understood generally as the ability to be wronged by the

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actions of others. 36 Laws such as the Animal Welfare Act (AWA) 37 and state anti-cruelty statutes operate from the premise that animals are part of our moral community, though they do not protect animals accordingly. This Part underscores inconsistencies between the stated purpose of animal laws and the protections that they confer. 38 Section A highlights dominant approaches to conceptualizing human obligations to animals. Current animal protections fall short of realizing the obligations associated with any of these approaches. This Section indicates that a certain degree of moral status must be afforded to animals to overcome the hierarchy problem. 39 Section B provides a sketch of a novel approach to conceptualizing the moral status of animals based on the universal vulnerability of all sentient animals to suffer. This approach, combined with the equal protection principle and the capabilities framework developed in Part VI, addresses the hierarchy problem raised by theories appealing to the rights or interests of animals.

A.

Current Approaches

There are a variety of ways to understand how animals may be wronged by human use and other human acts. It is helpful to view animals as possessing interests, rights, or vulnerabilities that entail something akin to negative and positive freedoms under Isaiah Berlin's classic account. 40 Animals may have a claim to freedom from interference as well as to affirmative obligations to assist them in achieving certain states. 41 Affirmative obligations towards domestic animals stem from their inherent dependency on humans for survival. 42 The view that animals possess either interests or rights is premised on the notion that they have capacities that are morally relevant. In 1789, utilitarian Jeremy Bentham argued that: "The question is not, Can [animals] reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?" 43 Contemporary utilitarian Peter Singer develops this view, arguing 36 Dale Jamieson, Morality's Progress: Essays on Humans, Other Animals, and the Rest of Nature 122 (Oxford U. Press 37 7 U.S.C. §§ 2131-2159 (2006 & Supp. 2008). 38 I want to emphasize that I am not speaking about the moral status of animals in detail; moral status is a controversial issue even with regard to humans, in the fetal context. 39 I am grateful to Michael Perry for discussion on this point. 40 Isaiah Berlin, Four Essays on Liberty 118-34 (Oxford U. Press 1969). Berlin, however, does not include animals under his account, as he does not believe them to be capable of"self-mastery" or "conceiving goals and policies ... and realizing them." Id. at 131. 41 Id. at 131. 42 Similar obligations extend to humans who are episodically dependent-as infants or in old age-or permanently dependant through disability or illness. 43 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation Ch. XVII, Section 1 (2d ed., 2d prtg., Gaunt, Inc. 2001).

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that animals are sentient beings based on their capacity to suffer and thereby entitled to equal consideration of their interests. 44 Under Singer's view, the suffering (or happiness) of nonhuman sentient animals should be given equal consideration to the suffering (or happiness) of human animals. 45 The suffering of animals in factory farms, laboratories, the entertainment industry, and households must be weighed against human satisfaction derived from the use of animals in these contexts. For example, human pleasure in consuming a ham sandwich cannot outweigh the profound suffering of a pig confined and immobilized in a gestation crate for the entirety of its life before slaughter. 46 To argue otherwise, Singer suggests, would be speciesist, or would unjustifiably privilege human suffering over that of other species. 47 Singer argues under a "properties view" that while all animals have the capacity to suffer, some animals have additional morally relevant interests because they possess higher capacities. 48 According to the properties view, animals with higher capacities or propertiessuch as the ability to see themselves existing over time, to be autonomous, to have conceptions of themselves, or to have relationships with others-possess interests that must be weighed within the utilitarian calculus. 49 As a result, not all sentient beings have lives of equal worth. 5° A common criticism of the properties view is that it results in the hierarchy problem because it privileges animals with the greatest capacities and may justify harmful human use of nonhuman animals. 5 1 Although Singer argues that no animal's interest in avoiding suffering is to be displaced by a higher-order interest-such as an interest in eating a ham sandwich-humans have higher-order interests that may privilege their suffering over that of nonhuman animals. For example, the suffering of a human with cancer may be greater than that of a nonhuman animal with the same type of cancer, given the human's knowledge of the effect of cancer on long-term plans and comSinger, Animal Liberation, supra n. 30, at 8. Id. 46 But see Jan Narveson, Animal Rights, 7 Can. J. Phil. 161, 173 (1977) (arguing that it is possible that "the amount of pleasure which humans derive per pound of animal flesh exceeds the amount of discomfort and pain per pound which are inflicted on animals in the process, all things taken into account"). 47 Singer, Animal Liberation, supra n. 30, at 18-20. 48 Id. at 20-21; see also Peter Singer, Practical Ethics 73-74, 110-11 (2d ed., Cambridge U. Press 1993). The "properties view" does not refer to the legal property status of animals. 49 Singer, Animal Liberation, supra n. 30, at 20-21; see also Singer, Practical Ethics, supra n. 48, at 73-74, 110-11. 50 Singer, Animal Liberation, supra n. 30, at 20-21; see also Singer, Practical Ethics, supra n. 48, at 73-74, 110-11. 51 Singer, Animal Liberation, supra n. 30, at 20-21; see also Singer, Practical Ethics, supra n. 48, at 73-74, 110-11. 44

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plex familial relationships. 52 If scientists must sacrifice 100 million mice to find a cure for a common cancer that affects 2.5 million people53 (a proposition Singer believes to be untrue, given computer modeling and other alternatives to animal experimentation), 54 a balancing of interests could result in experimenting on and killing the mice. 55 Balancing interests may also deny nonhuman animals a right to continuous existence. Assuming some nonhuman animals do not have a concept of a future, if they could be raised without suffering and killed painlessly, they could be sacrificed for a greater human purpose. 56 Despite these possibilities, current uses of animals in factory farms and laboratories cannot be justified, according to Singer, because the suffering they cause outweighs inferior interests in experimentation and flesh food consumption. 57 Deontological or rights-based views are derived from the tradition of Immanuel Kant, a contemporary of Bentham, who believed that rights are possessed by, and duties are owed to, beings capable of mutualjustification and reason-giving. 58 While nonhuman animals do not possess these capacities and therefore cannot themselves be rightsholders, Kant believed that humans have indirect duties to animals. 59 Cruelty to animals, Kant argues, offends humanity: "A master who turns out his ass or his dog because the animal can no longer earn its keep manifests a small mind." 60 Under Kant's view, it is likely that the cruelties of factory farming and animal experimentation would offend our humanity, though meat consumption could be justified if the raising and slaughtering of animals was performed humanely. Tom Regan offers a stronger rights-based view that animals' inherent value situates them within our moral community and affords 52 Singer makes a similar point about differences in suffering. See Singer, Animal Liberation, supra n. 30, at 15-16. 53 This is the approximate number of women living with breast cancer or in remission from breast cancer as of 2005. Nat!. Cancer Inst., Cancer Stat Fact Sheets: Cancer of the Breast, http://seer.cancer.gov/statfactslhtml/breast.html (last accessed Nov. 22, 2009). 54 Singer, Animal Liberation, supra n. 30, at 25-94. 55 This would depend on the amount that the humans suffer as compared to the amount that the mice suffer, given their different capacities. 56 Singer, Animal Liberation, supra n. 30, at 17-20. Gary Francione argues, however, that sentience implies an interest in continued existence. See Gary L. Francione, Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein, U. Chi. Leg. Forum 231, 239--40 (2006). He cites two grounds for this view: animals are aware of their bodies, and they will endure great pain to continue life. Animals caught in leg-hold traps, for example, will sacrifice their leg in order to free themselves. 57 Singer, Animal Liberation, supra n. 30, at 25-158. 58 See Immanuel Kant, Grounding for the Metaphysics of Morals 7-17 (James W. Ellington trans., 3d ed., Hackett Publg. Co. 1993). 59 Immanuel Kant, Lectures on Ethics 239--41 (Louis Infield trans., Methuen & Co. Ltd 1979). 60 ld. at 241.

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them universal rights. 61 Regan argues that humans have obligations of noninterference as well as affirmative duties to prevent harm to animals in most situations. 62 Regan's framework requires vegetarianism for humans (since humans have alternative food sources) and the end of hunting, animal experimentation, and presumably most other uses of domestic animals except for companionship. 63 The problem with Regan's view is that conflicts will arise between humans and animals who possess inherent value and have competing rights claims. As with interests, rights may be weighed and protections for lower-order animals undermined. Other arguments for including animals within our moral community are based on vulnerability. These approaches are not rooted in moral theory like utilitarianism or deontological approaches; rather, they provide independent moral arguments for the status of animals. One such view, which might be termed a holistic or ecological view, is that animals are part of our moral community because they are a constitutive part of our environment and contribute to its diversity. 64 Thus, animals within our ecosystem are vulnerable to disturbances and possess claims to noninterference regardless of sentience, or the ability to suffer. 65 This view is the most inclusive approach to the moral status of animals because it creates a presumption against harm to all animals regardless of mental properties. Applied to the domestic animal context, this view would prohibit almost all current uses of animals, with a possible exception for animals who are companions, so long as conflicts between the interests of domestic and wild animals could be minimized. 66 B.

Animals as Vulnerable Subjects

I argue that animals are part of our moral community based on a different type of vulnerability approach. Human and nonhuman animals share universal vulnerability to suffering with respect to certain basic capabilities. In developing my position, I apply Martha See Regan, supra n. 30, at 150-94. Id. 63 Id. at 150-94, 330-98. 64 See e.g. Bryant, Similarity or Difference, supra n. 33, at 239-43; Taimie L. Bryant, Animals Unmodified: Defining Animals I Defining Human Obligations to Animals, 2006 U. Chi. Leg. Forum 137, 162-93 (2006). 65 Bryant, Similarity or Difference, supra n. 33, at 239-43; Bryant, Animals Unmodified, supra n. 64, at 162-93. 66 For example, domestic and feral cats are endangering wild birds. See e.g. Dominique Pontier, David Fouchet, Joel Bried & Narges Bahi-Jaber, Limited Nest Site Availability Helps Seabirds to Survive Cat Predation on Islands, 214 Ecological Modelling 316 (2008); Philip J. Baker, Amy J. Bentley, Rachel J. Ansell & Stephen Harris, Impact of Predation by Domestic Cats Felis Catus in an Urban Area, 35 Mammal Rev. 302 (2005) (45-46% of some birds); Christopher A. Lepczyk, Angela G. Mertig & Jianguo Liu, Landowners and Cat Predation Across Rural-to-Urban Landscapes, 115 Biological Conserv. 191, 196 (2003) ("free ranging domestic cats depredated a minimum of 12.5% of the known breeding bird species"). 61 62

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Fineman's concepts of universal vulnerability and the vulnerable subject to nonhuman animals.6 7 Fineman understands vulnerability as the possibility of becoming dependent. 68 The vulnerable subject may have episodic or permanent dependency on others. 69 The potential for dependency is universal, and vulnerable subjects are interdependent in this way. 70 Vulnerability is also constant. 71 Individuals may be vulnerable as a result of their own biology (for example, sickness) or environmental forces (such as natural disasters or war). 72 Individuals who are vulnerable may avoid dependency through biological resilience, social supports, or, arguably, serendipity. When vulnerability is realized, individuals become dependent. Fineman argues that current legal structures privilege individuals whose vulnerability is not realized. 73 Social and legal institutions are also vulnerable to the extent that they may be controlled by the interests of individuals who are privileged.74 As a result, substantive inequalities may be embedded within the institutions that seek to address vulnerability. 75 Fineman argues that the state must restructure its social institutions to "reflect[ ) ... an affirmative obligation not to privilege any group . . . over others .... "76 Fineman's concepts are easily extended to domestic nonhuman animals. Domestic animals are vulnerable due to both their biology (limited capacities compared to most humans) and their environment (social and legal constructs that support their use for human benefit).77 Further, domestic animals and humans are interdependent. Animals are dependent on humans to provide them care and shelter, and humans depend on animals in a variety of contexts including companionship, protection, and service. Unquestionably, our legal and social structures favor human capabilities over those of domestic animals and are susceptible to further control by human interests. As a result, domestic animals are vulnerable to severe deprivations of basic capabilities, like the ability to receive sufficient food and hydration, to en67 See Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (2008). Fineman's theory eschews formal equality or sameness treatment. I do not apply her theory in this regard but rather seek to use her concepts of vulnerability and the vulnerable subject to argue for the moral status of nonhuman animals. 68 Id. at 9-10. 69 Id. 70 Id. 71 Id. at 8. 72 Id. at 9. 73 Fineman, The Vulnerable Subject, supra n. 67, at 13-14. 74 Id. at 12-13. 75 Id. at 18-19. 76 !d. at 21. 77 Our society is, of course, structured to support human capacities rather than those of animals. In other environments, nonhuman animals may have greater capacities for survival than humans.

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gage in natural behaviors of movement, and to maintain bodily integrity. Unlike most human animals, however, the dependency of nonhuman domestic animals is permanent. Throughout their lives, domestic animals rely on humans to provide them nourishment, shelter, and other care. The permanent dependency of domestic animals is created and controlled by humans, rendering them uniquely vulnerable to exploitation. Domestic nonhuman animals are, for this reason, perhaps the most vulnerable of all sentient beings. While a theory of animals as vulnerable subjects warrants development elsewhere, for present purposes it is sufficient to say that my argument for the moral status of animals is based on a number of premises that combine vulnerability concepts with long-standing views about animal capacities discussed in Section A. First, animal capacities for suffering are morally relevant, as are higher-order capacities, such as the ability to see oneself existing over time. Second, it is speciesist to privilege human over nonhuman animal suffering. Speciesism gives rise to legal gerrymandering, undermining animal protections and creating legal inconsistencies. Third, human and nonhuman animals are universally vulnerable to suffering, and their most basic capabilities must be treated equally before nonhuman animals may be used to support higher-order human capabilities. State institutions must not privilege humans in responding to universal vulnerability affecting certain basic capabilities. As I argue in Part VI, these morally relevant animal capacities-human and nonhuman-must be maximized within a given population, such as a home, university, town, or other community. 78 This approach avoids the hierarchy problem experienced by utilitarian and deontological frameworks. Before developing Equal Protection of Animals, however, it is necessary to discuss the scope of current legal protections and existing proposals for . furthering animal protection. III.

LEGAL GERRYMANDERING FOR HUMAN INTEREST

Animals are property under the law. As such, they are gifted, traded, sold, transported, stored, abandoned, and discarded. 79 They are valued at market price. They are owned by individuals as well as govemment and corporate entities. Legal protections for animals are based primarily on their value to their owners. Animals are scientifically useful organisms and provid78 See Sandel, supra n. 34 and accompanying text discussing the author's concept of "population." 79 The situation is different for wild animals, who are essentially wards of the state. See e.g. Ohio Rev. Code Ann. § 1531.02 (Lexis current through Nov. 10, 2009) ("The ownership of and the title to all wild animals ... is in the state, which holds such title in trust for the benefit of all the people."); see also Idaho Code Ann. § 36-103 (Lexis current through 2009 Reg. Sess.); Ind. Code§ 14-17-4-6 (current through 2009 1st Reg. & Spec. Sess.); S.D. Codified Laws§ 41-11-1 (current through 2009 84th Reg. Sess. 2004); Tex. Parks & Wildlife Code Ann. § l.Oll(a) (current through 2009 Legis. Sess.).

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ers of service, companionship, entertainment, and flesh food. Some prohibitions on uses of animals address the potential of animal bodies to affect human health negatively, as producers of dog bites, zoonoses,80 tainted meat, etcetera. Unlike most other forms of property, however, animals have protections by virtue of being living organisms. For example, companion animals must be provided with food and hydration,81 laboratory animals with food and space to stand and turn around, 82 and factory farm animals with blows or electric stunning to render them unconscious prior to slaughter. 83 The animal property holder thus determines the animal's use, operating under weak constraints imposed by animal welfare and anti-cruelty laws, and, in some cases, public health laws and regulations. Animals may be the primary or secondary subjects of laws. Animals are the primary subjects of laws that purport to prevent human cruelty as well as those with the stated purpose of regulating human use of animals for animal welfare and human safety. Every state has statutes that criminalize the abuse and neglect of companion animals.84 Federal statutes that address animal welfare pertain to animal dealing, 85 confinement of laboratory animals, 86 slaughter, 87 and, most recently, animal fighting. 88 Human uses of animals are also directly regulated to guard against threats to human health. The most notable example is the prohibition of the slaughter of diseased cattle for flesh food. 89 SO "Zoonoses" are infectious diseases transmitted from nonhuman animals to humans. See e.g. Ctrs. for Disease Control and Prevention, Natl. Ctr. for Zoonotic, Vector-Borne, and Enteric Diseases, http://www.cdc.gov/nczved (last accessed Nov. 22, 2009) ("Approximately 75% of recently emerging infectious diseases affecting humans are diseases of animal origin; approximately 60% of all human pathogens are· zoonotic."). Diseases transmitted from humans to nonhuman animals are often termed "reverse zoonoses." See e.g. Ctrs. for Disease Control and Prevention, Primate Malarias 8, http://www .dpd.cdc.gov/DPDx/HTML/PDF _Files/Primate%20Malarias%20Chapters/ chap_Ol.pdf (last accessed Nov. 22, 2009). 81 See e.g. Ga. Code. Ann. § 16-12-4(a)(3) (current through 2009 Reg. Sess.). 82 See e.g. 9 C.F.R. § 3.6(a)(2)(xi) (2008) (requirements for dogs and cats). 83 7 U.S.C. § 1902(a) (2006 & Supp. 2008). 84 See Animal Protection Laws of the United States of America (Stephan K Otto ed., 2d ed., Animal Leg. Def. Fund 2005). See also Ga. Code Ann.§ 16-12-4 (current through 2009); Iowa Code§ 717B.2 (current through 2008); Mich. Comp. Laws§ 750.50 (current through 2009); Mo. Rev. Stat. § 578.012 (current through 2009 1st Reg. Sess.); Wis. Stat. § 951.02 (current through 2009). 85 Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2006 & Supp. 2008). 86 ld. 87 Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1907 (2006 & Supp. 2008). 88 Animal Fighting Prohibition Enforcement Act of2007, Pub. L. No. 110-22, §§ 1--3, 121 Stat. 88, 89 (2007). 89 See Andrew Martin, U.S. Moves to Prohibit Beef from Sick or Injured Cows, 157 N.Y. Times C3 (May 21, 2008) (available at http://www.nytimes.com/2008/05/21/business/21beef.html (last accessed Nov. 22, 2009)). Prior to 2008, cattle too sick to stand, "downers," could be slaughtered for food after veterinary inspection. ld. The change occurred after 143 million pounds of beef were recalled from the Hallmark/Westland

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Animals are also the secondary subjects of laws. In other words, laws with humans as primary subjects may affect animals. For example, animals may be used as disability accommodations under the Americans with Disabilities Act of 1990 (ADA), 90 the Fair Housing Act, 91 and parallel state disability and housing statutes. Animals may also be police or military property.9 2 A consequence of the property status of animals is that they do not have standing to sue. 93 Animal advocates have limited ability to bring suit on behalf of animals, and many federal animal cases are dismissed for lack of standing.9 4 While standing may be statutorily granted, the Animal Welfare Act (AWA) and the Humane Methods of Livestock Slaughter Act (HMLSA) do not contain a private right ofaction. 95 Further, animal advocates experience difficulty demonstrating injury for abuses to animals they do not own. 96 Attempting to meet the constitutional requirements for standing of a concrete and particularized injury, advocates advance with limited success theories of economic, 97 aesthetic, 98 and informational harm. 99 Each of these arguments for standing is made from the viewpoint of promoting a human interest, even though animal advocates employ them to further animal protections. Meat Co. in California, following the flesh of diseased cattle entering the human food chain. ld. Downed farm animals other than cattle may still be slaughtered after veterinary inspection. 21 U.S.C. § 603(a) (2006 & Supp. 2007). 90 42 U.S.C. §§ 12101-12213 (2006 & Supp. 2007). 91 42 U.S.C. §§ 3601-3607 (2006 & Supp. 2007) (as amended 1988). 92 See e.g. Craig Ian Scheiner, Statutes with Four Legs to Stand On?: An Examination of "Cruelty to Police Dog" Laws, 5 Animal L. 177, 203-{)4 (1999) (discussing police dogs as property); 10 U.S.C. §2583 (2006 & Supp. 2008) (categorizing spent military dogs as "obsolete, surplus, or unclaimed property"); Cal. Civ. Code Ann. §§ 3342(b)-{d) (Lexis current through 2009-2010 Reg. Sess.) (discussing government ownership and use of dogs for military and police work). 93 Sunstein, Standing for Animals, supra n. 32, at 1334, 1359. 94 Dillard et al., supra n. 30. 95 There is also no private right of action under the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1423h (2006 & Supp. 2007). 96 See e.g. Animal Leg. Def Fund v. Epsy, 23 F.3d 496 (D.C. Cir. 1994); Animal Lovers Vol. Assn. v. Weinberger, 756 F.2d 937 (9th Cir. 1985). For a private party to sue under these acts in federal court, the case must be brought by a plaintiff who is injured (or is in imminent danger of injury) due to the defendant's conduct, and the court must be in a position to redress the injury. Bennett v. Spear, 520 U.S. 154, 167 (1997). 97 Economic harm might arise if the government does not enforce animal protection' laws, and animal exploitation creates a market advantage. Sunstein, Standing for Animals, supra n. 32, at 1346-47. Consider cosmetic testing, where testing on animals may allow for a broader product line. 98 Aesthetic injury occurs when humans are unable to observe animals in zoos, sanctuaries, or in the wild. ld. at 1347--{52. 99 Plaintiffs have standing to bring a claim for denial of a right to obtain information about the treatment of animals under the Administrative Procedure Act. ld. at 1344. This includes the ability to obtain information about animals in certain facilities when the injury is within the scope of the relevant statutory protections and is not too generalized. ld. at 1343-45.

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Whether animals are the primary or secondary subjects oflaws, or regulated for their own or human welfare, their legal treatment is defined by human interest. This results in legal gerrymandering, which both undermines fundamental protections for animals and creates legal inconsistencies. The following sections address legal gerrymandering in the development and reinterpretation of laws. Human interest in using animals is perceived as so strong in some instances that it tips the scale to resolve competing legal rights of humans.

A.

Undermining Fundamental Protections

The interest-convergence that gives rise to legal gerrymandering arises in three contexts. First, it occurs in the development oflaws pertaining to animals. Second, it results when existing laws are reinterpreted to accommodate new or to maintain existing human uses of animals. Third, it occurs when human interest in using animals shifts the balance to resolve conflicts between other human legal rights. While animals receive some protection in the last situation, they are considered a means to an end rather than as beings who possess legally relevant capacities. Each of the three contexts results in legal gerrymandering because basic protections for animals based on their capabilities are undermined.

1.

Privileging Human over Animal Interests in the Development of Laws Pertaining to Animals

Even a superficial examination of laws affecting animals reveals that, despite their terminology, they largely protect human rather than animal interests. For example, the AWA addresses the confinement oflaboratory animals 100 with requirements only sufficient to sustain animal life to facilitate research. 101 In addition, the AWA regulates animal dealing to protect owners of companion animals against theft of their property. 102 The "Findings and Declaration of Policy" of the HMLSA addresses the conditions of slaughterhouse workers, improved flesh foods, economy of production, and other benefits to "producers, processors, and consumers." 103 The prevention of "needless suffering" 104 is the sole reference to animal welfare in the statute, and this requires only that animals are "rendered insensible" 7 U.S.C. §§ 2131, 2143(a)(1)-{2), (4) (2006 & Supp. 2008). !d. at § 2143(a)(2)(A) ("The standards ... shall include minimum requirementsfor handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species ... ."). When humane treatment conflicts with scientific or other human interests, even these minimum standards are sacrificed. !d. at § 2143(a)(3)(D) ("[N]o animal is used in more than one major operative experiment from which it is allowed to recover except in cases of ... scientific necessity ... or other special circumstances .... "). 102 !d. at § 2131(3). 103 !d. at § 1901. 104 Id. 100 101

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prior to killing. 10 5 Greater balance between human and animal interests is seen in state anti-cruelty laws pertaining to companion animals, though the laws often support a desire to break the chain of violence leading to human harm. 106 Prosecuting crimes against animals creates a record of physical violence that identifies individuals posing a risk to humans and may deter violent individuals from committing future crimes.10 7 Recent developments in animal law are clearly prompted by human need and are therefore also vulnerable to changing human uses of animals. For example, federal quality standards for pet food 108 were not proposed until contaminated food killed beloved companion animals, entered the human food chain, and threatened a $16.9 billion industry.l 09 Congress passed a law allowing pets in shelters during federal emergencies after people were killed during Hurricane Katrina when they refused to evacuate their homes without their companion animals. 110 Similarly, some shelters for human victims of domestic violence allow companion animals because studies indicate that onequarter to one-third of abused individuals are reluctant to leave their ld. at § 1902. See generally Nat!. Conf. of St. Legis., Rita Thaemert, Violence at Home: Pets and People, http://www.ncsl.org/programs/pubs/lbriefs/2001/legis918.htm (Mar. 2001) (last accessed July 26, 2009) (discussing state anti-cruelty statutes as a means to address human violence and the desire of law enforcement to strengthen such laws based on evidence that "early intervention for animal abusers is more likely to reduce adult crime than later criminal penalties[.]") (website no longer available); Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An Overview, 5 Animal L. 69, 70 (1999) (noting that in light of studies linking human and animal abuse, 50% of states have strengthened anti-cruelty statutes making extreme animal cruelty a felony). See also People v. Garcia, 777 N.Y.S.2d 846, 849 (N.Y. App. Div. 1st Dep't, Mar. 28, 2006) (construing "Buster's Law," N.Y. Agric. & Mkts. L. § 353-a (McKinney current through Oct. 28, 2009) and quoting its legislative history: "'[T]he connection between animal abusers and violence towards humans shows that virtually every serial killer had a history of abusing animals before turning their attention to people.'" (internal citations omitted)); People v. Dyer, 115 Cal. Rptr. 2d 527, 532-33 (Cal. App. 2d Dist. 2002) (construing Cal. Penal Ann. § 597(g) (Lexis current through 2009-2010 Reg. Sess.) and discussing its legislative history, which supports a desire to prevent human violence); Or. Rev. Stat. § 686.442 (current through 2007 Reg. Sess.) ("[Because] [t]he Legislative Assembly finds that there is a direct link between the problems of animal abuse and human abuse ... it is necessary and in the public interest to require mandatory reporting of aggravated animal abuse by veterinarians."). 107 Animal Leg. Def. Fund, No Boundaries for Abusers: The Link Between Cruelty to Animals and Violence Toward Humans, http://www.aldf.org/article.php?id=268 (last accessed Nov. 22, 2009). 108 See Human and Pet Food Safety Act of 2007, Sen. 1274, H.R. 2108, llOth 105 106

109 Am. Pet Prods. Assn., Industry StQ,f;istics and Trends, http://www.americanpet products.org/press_industrytrends.asp (last accessed Nov. 22, 2009) (citing APPA's 2007/2008 National Pet Owners Survey). llO See Pets Evacuation and Transportation Standards (PETS) Act of 2006, Pub. L. No. 109--308, 120 Stat. 1725 (Oct. 6, 2006) (amending the Roberts T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (1988)).

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animal companions behind. 111 Haley's Act, named after a young woman killed by a Siberian tiger while posing for a high school senior photo, would ban the use of large cats outside of sanctuaries and zoos because of their danger to humans, not because of the cruelty involved in keeping a large cat outside of its native environment. 112 The Animal Fighting Prohibition Enforcement Act 113 stresses the risk to public safety posed by animal fighting operations (especially dog fighting, where animals are bred and trained for aggression and violence), the propagation of crime, and the culture of violence that surrounds the macabre sport.114 Even when animals are protected by law, many animal welfare laws contain exceptions for particular human uses of animals or deny protections to certain species altogether. Farm animals have no federal protections pertaining to their confinement or rearing because factory farms are the most efficient, and arguably the only, means to produce enough flesh foods to meet existing consumer demand. 115 The AWA and anti-cruelty statutes in most states exclude farm animals. 116 Factory farms could not comply with the minimum cage requirements of the regulations supporting the AWA, namely, room for each animal to stand up, turn around, sit, lie down, and walk normally. 117 Similarly, the HMLSA contains exemptions for religious methods of slaughter, regardless of the additional suffering it may cause the animal.1 18 Companion animals, the most protected of all domestic animals, do not fare better when their interests clash with human interests. For example, the U.S. Supreme Court ignored animal cruelty laws to strike down city ordinances targeting the religious sacrifice of animals by the Santeria and the Church ofLukumi Babalau Aye.l 19 No restric111 See e.g. Andrea Hsu, Groups Moue to Protect Women and Their Pets, http:// www.npr.org/templates/story/story.php?storyld=10119810 (last accessed Nov. 22, 2009) (discussing animal safe havens). 112 Haley's Act, H.R. 1947, 109th Cong. (Apr. 19, 2007). 113 Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. No. 110-22, 121 Stat. 88, 89 (May 3, 2007). 114 ld.; see also H.R. Jud. Comm., Animal Fighting Prohibition Enforcement Act of 2007: Hearing Before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, llOth Cong. 45-55 (Feb. 6, 2007) (statement of Wayne Pacelle, Pres. & CEO of Humane Socy. of the U.S.). 115 Singer, Animal Liberation, supra n. 30, at 160. 116 See David Wolfson & Marianne Sullivan, Foxes in the Hen House: Animals, Agribusiness, and the Law: A Modern American Fable, in Animal Rights: Current Debates and New Directions 212, 228 n. 20 (Cass R. Sunstein & Martha C. Nussbaum eds., 2004) (discussing that farm animals are excluded to some extent in twenty-nine states); but see 7 U.S.C. §§ 2131-2159; N.Y. Agric. & Mkts. L. §§ 332-379, at§§ 350, 353 (McKinney current through Oct. 28, 2009) (for purposes of the anti-cruelty laws, "animal ... includes every living creature except a human being"; exceptions exist for laboratory but not farm animals). 117 See e.g. 9 C.F.R. § 3.6(2)(xi) (2008) (requirements for dogs and cats); see infra nn. 198-207 and accompanying text discussing the intensive confinement of farm animals. 118 7 U.S.C. §§ 1902(b), 1906 (2006 & Supp. 2008). 119 Church of the Lukumi Babalu Aye, Inc. u. City of Hialeah, 508 U.S. 520, 547 (1993). While legally this decision is sound as the ordinances targeted the religious

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tions were imposed on the method of sacrifice. Working animals such as police, war, and drug- and explosive-detecting dogs have limited protections from their handlers under state anti-cruelty statutes. 120 They are routinely subjected to abusive negative reinforcement training practices such as shocking and prolonged muzzling, worked to the point of exhaustion and bodily degradation, and placed in life-threatening situations.1 21 These dogs are government property and may be categorized and treated as equipment.122 Legal protections for animals are weakened further and legal inconsistencies are exacerbated when animal laws are reinterpreted to support either emerging human uses of animals or existing uses threatened by law reform efforts.

2.

Reinterpreting Laws in Light of Human Uses of Animals

Animal protection laws are frequently reinterpreted to accommodate new human uses of animals or to maintain existing ones. These constructions exacerbate legal gerrymandering to benefit humans, which disrupts fundamental protections for animals based on their natural capacities and further weakens animal protections. For some animals, prohibitions against mutilation and intensive confinement are placed in jeopardy. For example, when state anti-cruelty laws conflict with human interest in efficient flesh food production, the protections they contain are minimized. 123 In one recent case, the Superior Court of New Jersey baldly and tautologically declared: "Routine husbandry practices are humane [under state anti-cruelty law] because of who teaches them practices of the Santeria, it provides an important example ofhuman interests creating an exception to the protection of the most basic interests possessed by nonhuman animals, namely, in not suffering and continued existence. Interestingly, the courts have imposed greater restrictions on Native Americans possessing bald eagle feathers for religious ceremonies. See e.g. U.S. v. Hugs, 109 F .3d 1375, 1378 (9th Cir. 1997) (limiting access to eagle feathers for religious purposes to members of federally recognized tribes); see also Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exemptions from the Native American Experience, 76 U. Colo. L. Rev. 989, 992 (1995) (same). But see U.S. v. Hardman, 297 F.3d 1116, 1135 (lOth Cir. 2002) (Despite a compelling interest to preserve the eagle population, the permit scheme enabling only members of federally recognized tribes to possess eagle feathers may not be the least restrictive means of achieving that interest.). 120 See e.g. Craig Scheiner, "Cruelty to Police Dog" Laws Update, 7 Animal L. 141, 144 (2001) (discussing how current protections do not protect police dogs from being sacrificed as law enforcement tools) . . 121 See e.g. Dan Kane, Video of Trooper Kicking Dog Released, http://www.newsobserver.com/frontJstory/1053732.html (Apr. 29, 2008) (website no longer available) (last accessed Sept. 10, 2009) (dogs suspended and kicked, stunned with Tasers, swung by leashes, and hit with plastic bottles filled with rocks as part of training). 122 See e.g. U.S. v. Garcia, 909 F. Supp. 334, 339 (D. Md. 1995) (construing 10 U.S.C. § 372 (2006 & Supp. 2008) to include military dogs as equipment). Retired war dogs are routinely killed after their service, if their former handlers or other suitable parties do not wish to adopt them. Promotion and Adoption of Military Working Dogs, Pub. L. No. 106-446, 114 Stat. 1932 (2000) (codified at 10 U.S.C. § 2583) (2006 & Supp. 2008). 123 See supra n. 116 and accompanying text discussing the exclusion of farm animals from state anti-cruelty statutes.

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and who may perform them." 124 The court reasoned that close confinement (resulting in extreme stress, neurotic behaviors, and insanity) 125 as well as de-beaking, toe trimming, and castration without anesthesia are warranted as a practical matter: "[l]t would be essentially impossible, and certainly impractical ... to list every possible routine husbandry practice taught ... and then create specific humane standards for every practice." 126 While the New Jersey Supreme Court later overturned the holding that agricultural institutions (rather than the State Board of Agriculture) may determine whether their own practices are humane, 127 the court indicated that all but one of the practices at issue (tail docking) 128 could be humanely performed. 1 29 Similar legal gerrymandering occurred-this time by Congresswhen the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) proposed regulations to protect rodents under the AWA, which covers "laboratory" and "warm-blooded" animals. 1 30 APHIS' interpretation of the AWA was strongly contested by the National Association of Biomedical Research and other lobbies. A statutory amendment was ultimately passed excluding rodents and birds from the definitions of "laboratory" and "warm-blooded" animals, creating a legal fiction. 13 1 While this Article focuses on domestic animals, the wildlife context provides a particularly poignant example of the ease with which laws may be reinterpreted to support human uses of animals. The Endangered Species Act of 1973 (ESA) 132 protects wildlife whose species 124 N.J. Socy. for the Prevention of Cruelty to Animals v. N.J. Dept. of Agric., 2007 WL 486764 at *14 (N.J. Super. Ct. App. Div. Feb. 16, 2007). These individuals-veterinary and other agricultural school professors and their farming students-need only perform the practices as taught to engage in humane behavior. Id. This is an exception to the legal standard that routine practices or customs may be challenged in most contexts. See The T.J. Hooper v. Northern Barge Corp., 60 F.2d 737, 740 (2d Cir. 1932) (treating custom as probative but not dispositive); Restatement (Second) of Torts, § 295A (1965) ("In determining whether conduct is negligent, the cul!toms of the community ... are factors to be taken into account, but are not controlling where a reasonable man [or woman] would not follow them."). Exceptions are made for the human medical and some other professions. See e.g. Jones v. Chidester, 610 A.2d 964, 969 (Pa. 1992) (holding two accepted "schools of thought" are a complete defense to medical malpractice). 125 See infra nn. 200--01 and accompanying text. 126 N.J. Socy. for the Prevention of Cruelty to Animals, 2007 WL 486764 at *14. 127 N.J. Socy. for the Prevention of Cruelty to Animals v. N.J. Dept. of Agric., 955 A.2d 886, 889, 905--07 (N.J. 2008). 128 Tail docking involves the removal of the end of the tail of dairy cows. The court disapproved of this as "humane" because it had "no [industry or other] support at all." Id. at 908--09. 129 I d. at 908--09. The Court focused on the abuse of discretion by the State Board of Agriculture in subdelegating authority to institutions teaching agricultural science, rather than assessing the cruelty of routine practices. I d. at 889. 130 64 Fed. Reg. 4356-67 (Jan. 28, 1999). 131 Farm Security and Rural Investment Act of2002, Pub. L. No. 107-171, §§ 10301, 10304, 116 Stat. 134, 491-92 (2002). 132 Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1534 (2006 & Supp. 2008).

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are endangered ("in danger of extinction") 133 or threatened ("likely to become endangered"). 134 The ESA is the product of interest-convergence in the sense that humans benefit from wild animals who inform scientific inquiry and are aesthetically appreciated. 135 Animals may not be protected under the ESA when doing so conflicts with human interest, however. In Alaska, gray wolves, who are protected as either endangered or threatened in other areas of the country, 13 6 are unprotected and subject to aerial shooting.1 37 Wolves kill caribou and moose, thereby limiting human hunting of them. 138 The stated goal of the air raids is to "reduce wolf populations in each of the specified areas by as much as 80 percent annually, leaving a minimum number of wolves to ensure they are not wiped out." 139 Remarkably, Alaska overrode two public referenda banning aerial hunting by passing a law that "allows the state to issue permits to qualified pilots and gunners in areas of 'intensive management' . . . important for human consumption."140 Occasionally, evolving human interest in using animals overlaps with animal well-being. The strongest example is the common law affecting companion animals. Historically, recovery for harm to companion animals was limited to the animal's market worth or other pecuniary value, which for a shelter animal may be negligible. 141 As the number of companion animals increases (71.1 million living within 63% of U.S. households) 142 and human reliance on them grows, the common law is evolving to recognize greater recovery for owners who are injured by loss of companionship due to negligence or intentional 133 Id. at § 1532(6). 134 Id. at § 1532(20).

135 I d. at § 1531(a)(3) ("[T]hese [protected] species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."). 136 Gray wolves are protected in the Western Great Lake region and in Wyoming. See U.S. Fish & Wildlife Serv., Western Gray Wolf, http://www.fws.gov/mountain-prairie/ species/mammals/wolf; select Final Rule, Western Great Lakes (last accessed Nov. 22, 2009). 137 Alaska Dept. ofFish & Game, Alaska's Non-Endangered Species, http://www.adfg .state.ak.us/special/esa/non-endangered.php (last updated Aug. 11, 2008) (last accessed Nov. 22, 2009); Tim Mowry, Wolf Control Effort Fails to Hit Target, http://friendsofanimals.org/news/2006/may/wolf-control-effort-.html (May 3, 2006) (last accessed Nov. 22, 2009) (discussing aerial shooting). 138 Mowry, supra n. 137. 139 Id. 140 Id. 141 See e.g. Columbus R.R. Co. u. Woolfolk, 58 S.E. 152, 154 (Ga. 1907) ("The value of a dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal ... ."); Heiligmann v. Rose, 16 S.W. 931, 932 (Tex. 1891) ("It may be either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog."); Melton v. South Shore U-Driue, Inc., 303 N.Y.S.2d 751, 752 (N.Y. App. Div. 1969) ($7,000 award for loss of pedigree Collie show dog). 142 Am. Pet Prods. Assn., Industry Statistics and Trends, supra n. 109.

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tort. 143 In some jurisdictions, recovery for emotional distress is allowed in veterinary malpractice actions, 144 and malicious injury to a pet may be considered when assessing emotional damages arising from intentional torts. 145 Some companion animal guardians may even be eligible for "petimony," that is, money paid upon divorce by the noncustodial guardian to the custodial guardian for the care of a pet. 146 While these developments for companion animals may deter future veterinary or other harm, dangers exist. As the factory farm, laboratory, and wildlife contexts demonstrate, animals are rendered hypervulnerable to changing human desires, and their most fundamental protections may be undermined. The same concerns apply to the third area of legal gerrymandering, which occurs when human interest in using animals (and providing them limited protections to further such use) tips the balance to resolve conflicts between competing human legal rights.

Using Human Interest in Animals to Resolve Legal Conflict

3.

Perhaps the best example of using animals to resolve legal conflict among humans arises in the housing context. Animals may be involved in housing disputes when humans are the primary subjects of the relevant laws. In this context, human use of animals may be privileged over other property claims, with little or no regard for animal welfare. A case from California, Auburn Woods v. Fair Employment and Housing Commission, 147 provides a salient example. Auburn Woods pit the no-dogs policy within the covenants, conditions, and restrictions (CCRs) of a condominium association against the rights of a disabled couple to keep in their residence Pooky, a small terrier, as an accommodation for emotional support. 148 Ed Elebiari, disabled from a car accident, was hydrocephalic and suffered from bipolar, obsessive-compulsive, and seizure disorders.l 49 His wife, Jayne, experienced major depressive episodes involving insomnia and acts of self-mutilationJ50 Allegedly, Pooky enabled the couple to leave their home and Jayne to maintain employment. 151 After the Elebiaris were forced to place Russ, supra n. 9, at 526-27. See e.g. McAdams v. Faulk, 2002 Ark. App. LEXIS 258 at **13, 14 (Ark. App. 4th Div. 2002), overruled in part on other grounds, Hamilton u. Allen, 267 S.W.3d 627 (Ark. App. 1st & 2d Div. 2007); Johnson u. Wander, 592 So. 2d 1225, 1226 (Fla. 3d Dist. App. 1992), criticized, Kennedy u. Byas, 867 So. 2d 1195 (Fla. 1st Dist. App. 2004). 145 See e.g. Womack u. Von Rardon, 135 P.3d 542, 546 (Wash. 2006); Tenn. Code Ann. §§ 44-17-403(a)(1) (Lexis current through 2009 Reg. Sess.) (noneconomic damages up to $5,000 for a domesticated dog or cat intentionally or negligently killed on owner's property or while under owner's control and supervision). 146 See e.g. Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrimonial L. 1, 8 n. 44 (2006). 147 18 Cal. Rptr. 3d 669 (Cal. App. 2004). 148 Id. at 671-72. 149 Id. at 673. 150 ld. 151 Id. 143 144

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Pooky in the care of a friend, Ed became home-bound, Jayne abandoned her job, and their marital relationship deteriorated. 152 The couple did not dispute knowledge of the no-dogs policy and ultimately moved to another state.l 53 Nevertheless, they filed suit under the California Fair Employment and Housing Act (CFEHA), arguing that Pooky promoted their psychological well-being and that the condominium association, Auburn Woods, should pay damages for failing to accommodate them.l 54 Auburn Woods argued that the Elebiaris were reasonably accommodated under the terms of the CCRs, which allowed residents to house other companion animals, such as rabbits or cats, for emotional support. 155 While the lower court found this argument compelling, the appellate court determined alternative animal companions to be ersatz and held that the Elebiaris were entitled to compensation for emotional distress. 156 This case is particularly interesting because the desired accommodation at stake for the Elebiaris was not a trained guide or service dog 157-an accommodation that would be upheld as a matter of civil right under the ADA 158-but rather a companion animal with no special skills. The court upheld the Elebiaris' accommodation under the CFEHA on the basis that Pooky enabled the Elebiaris to use and to enjoy their home. 159 While disability accommodations are decided on a case-by-case basis, 160 the decision notably extended the exception to CCRs beyond specially trained service and guide dogs.l 61 Further, by requiring a dog as a necessary accommodation, the decision expanded the range of required accommodations beyond that required by the ADA; that is, only a particular type of companion animal was recognized by the court as adequate to meet the Elebiaris' emotional needs. 162 In fact, one could understand the opinion to say that only Pooky himself was a reasonable accommodation for the Elebiaris. 163 In no other context has conflict over a physical accommodationconflict between property rights and adaptations for human impairment-been resolved in this way. In cases of accommodation for im!d. Auburn Woods, 18 Cal. Rptr. 3d at 673, 676. !d. at 676. !d. 156 !d. at 682, 684. 157 !d. at 682. 158 42 U.S.C. §§ 12101-12213, at § 12111(9)(A) (2006 & Supp. 2007); 28 C.F.R. § 36.104 (2008) ("Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability .... "). 159 Auburn Woods, 18 Cal. Rptr. 3d at 677-79. 160 42 U.S.C. § 12102(2) (2006 & Supp. 2007); see also Sutton v. United Airlines, 527 U.S. 471, 480 (1999) (superseded by statute on other grounds) (construing the ADA to involve a case-by-case inquiry). 161 Auburn Woods, 18 Cal. Rptr. 3d at 679, 682. 162 !d. at 683. 163 !d. 152

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pairments rising to the level of disability under the ADA, which informs CFEHA jurisprudence, 164 accommodation from within a category of similar goods is sufficient. The ADA only requires that the accommodation is reasonable, not that it is what the plaintiff prefers. 165 For example, an electric company repair person with a clinical fear of heights might be provided additional safety belts for climbing or be relocated to a warehouse job, rather than receive her preferred accommodation of a much more costly truck with a mechanical arm and bucket in which to stand.l 66 Under this reasoning, it is likely that a rabbit or another companion animal allowed by the condominium association would be considered a reasonable accommodation for the emotional needs of the Elebiaris. This is significant because it demonstrates how deeply human use of animals is embedded in current law. Claims involving the use of animals to promote human wellbeing may be legally recognized as stronger than claims for the use of inanimate tools of assistance. Protections for animals based on this type of interest-convergence are extremely narrow. For example, while Pooky would be entitled to continued indoor shelter if the Elebiaris had stayed at Auburn Woods, the court was silent about the ability of the Elibiaris, who are often house-bound for long periods of time, to care for Pooky. The dog's needs are addressed only with regard to Jayne's well-being: "Jayne described how her depression and related symptoms improved after getting the dog. She no longer sat around the house brooding but instead paid attention to the dog's needs .... "167 The CCR shelter exception would not apply to a dog whose life was in danger due to exhaustion, inclement weather, or human abuse. Further, protections resulting from such interest-convergence are vulnerable to legal gerrymandering. If human emotional needs or disability are temporary, so too may be the companion animal's home (or life). Whether laws are directed at animals as primary or secondary subjects, their lives are controlled by human interests. Animals are afforded either no or limited protections, and exceptions are made to laws that purportedly protect animals to privilege human over animal well-being. Animals are protected only when human and nonhuman animal interests converge. For example, in Auburn Woods, Pooky's Id. at 677-78. 29 C.F.R. § 1630.9(d) (2008) ("If more than one of these accommodations will enable the individual to perform the essential functions [of her job] ... the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide."). See also Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177-78 (lOth Cir. 1999) (describing ADA standard); Keever v. Middletown, 145 F.3d 809, 812 (6th Cir. 1998) (citing Hankins v. The Gap, 84 F.3d 797, 800--01 (6th Cir. 1996)) (same). 166 These facts are based loosely on those of Skerski v. Time Warner Cable Co., 527 F.3d 273, 285 (3d Cir. 2001). 167 Auburn Woods, 18 Cal. Rptr. 3d at 679. 164 165

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shelter was dependent on his utility to his disabled owners. When interests diverge, legal gerrymandering causes the disruption of fundamental protections, as seen in the factory farming, laboratory, working animal, and animal sacrifice contexts. Because animal law is defined by human interests, and humans use the same types of animals or animals with similar capacities in different ways, inconsistencies are created. B.

Creating Legal Inconsistencies

Inconsistencies created by legal gerrymandering undermine the form and function of the body of law pertaining to animals. Ignoring animal capacities such as the ability to suffer disrupts the foundations upon which fundamental legal protections for animals are premised and weakens the precedential value of animal law. Inconsistencies frustrate expectations about the duties owed to animals, which makes compliance with, and enforcement of, animal laws difficult. This Section begins by discussing legal inconsistencies that arise due to the differential treatment of animals within the same legal or species categories as well as the unequal treatment of animals of different species with similar abilities. When animals with similar abilities are treated differently, the use of animal capacities as a relevant baseline for legal protection is undermined. In these instances, any of a number of human interests-including economic efficiency, scientific curiosity, and consumptive preferences-may be substituted for animal capacities to shape laws affecting animals. This changes the content and function of animal law on an ad hoc basis. Even when the legal protections of animals are tied to their capabilities, their capacities are not assessed in an objective manner. This Section concludes by discussing recent case law indicating that unlike in cases involving human harm, courts may not appeal to objective, scientific evidence about the capacities of animals when doing so conflicts with human use of animals. When animal capacities are discounted, the use of capacities as a baseline for protection becomes almost meaningless. 1.

Animals Sharing the Same Legally Created or Species Category

Animals within the same legally-constructed category, as well as animals within natural species categories, may be subject to differential treatment under law based on human use. Primary legal categories of domestic animals include: "companion animal," "laboratory animal," "livestock," and "warm blooded animal." Animals within these categories may receive different treatment, even if they are of the same species. Consider the legal class "companion animals." Animals who assist a disabled person may evade quarantine 168 and are allowed in places 168

See e.g. Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).

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of public accommodation, including housing that would otherwise prohibit them.l 69 Yet even animals within the subcategory of"service animals" may experience different treatment, depending on their owner's impairment and whether the animal is a reasonable accommodation in a particular context. Animals used as accommodations for disability and emotional needs rely on fact-specific determinations, meaning that each individual and accommodation is assessed on a case-by-case basis.170 Some individuals with service animals may not be legally defined as disabled and entitled to an accommodation. For others, a service animal may not be a reasonable accommodation. For example, a seizure-alert dog for a chef may be viewed as a public health hazard in areas of food preparation. Further, some building CCRs privilege one species of companion animal over another. 171 Similar inconsistencies arise under the AWA and state anti-cruelty statutes with respect to "companion animals." The AWA draws distinctions within the category of companion animals based on the party selling the animal. Companion animals who are sold in retail pet stores are not protected under the AWA, 172 while animals originating from commercial breeders have protections concerning their confinement, care, and conditions of transportation.t 73 Under state anti-cruelty statutes, prosecution of animal abuse cases may depend on the well-being of the abuser. Cruelty associated with pet hoarding is often seen as the product of a human illness rather than as a crime, or as a combination of both, warranting a lesser charge than in other circumstances where animals experience similar neglect and suffering. 174 The legal focus in hoarding cases is shifted from animal well-being and the consequences of human behavior to the current and future well-being of the human engaging in the behavior.1 75 28 C.F.R. § 36.104 (2008). Auburn Woods, 18 Cal. Rptr. 3d at 679. Compare Green v. Hous. Auth. of Clackamas County, 994 F. Supp. 1253, 1257 (D. Or. 1998) (allowing dog to assist deaf child resident despite lease prohibiting pets) with Nahrstedt v. Lakeside Village Condo. Assn., 33 Cal. Rptr. 2d 63, 80 (Cal. 1994) (prohibiting three indoor cats in violation of condominium association's CCRs); Villa de las Palmas Homeowners Assn. v. Terifaj, 14 Cal. Rptr. 3d 67, 80-81 (Cal. 2004) (prohibiting dog in violation of condominium association's CCRs). 171 See e.g. Auburn Woods, 18 Cal. Rptr. 3d at 673, 676 (condominium association allowing birds and cats but not dogs). 172 7 U.S.C. §§ 2132(f)(i), 2133 (2006 & Supp. 2008). 173 !d. at§§ 2132(f)(ii), 2133, 2143. 174 See e.g. Emily Haile, Pet Hoarding Called a Disorder: Experts Say Type of Animal Cruelty Is More an Illness Than a Crime, Baltimore Sun 5G (Sept. 29, 2006); see also Colin Berry & Gary Patronek, Long-Term Outcomes in Animal Hoarding Cases, 11 Animal L. 167, 176 (2005) (reporting the results of a study of fifty-six animal hoarding cases in which most defendants received only misdemeanor charges, and eight individuals did not receive any charge, including one case where dead animals were discovered at the defendant's residence). 175 Haile, supra n. 174, at 5G. 169

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Additional inconsistencies are found within other legal categories of animals. The AWA applies to "laboratory animals" who are "warmblooded animals," yet rodents and birds are excluded from the Act. 176 This is a sizeable omission, as the National Association of Biomedical Research estimates that 95% of animal experimentation is performed on rodents, 177 with rats and mice being used for experimentation more than all other vertebrate animals together.l 78 While the exact number of rodents used is unknown, some studies place rat use alone as high as 23.6 million a year. 179 Differential treatment also arises under the AWA with regard to "laboratory animals" of the same species. The Act applies only to animals used in university or industry laboratories. 180 Animals used in primary or lower secondary education experiments are not protected. 181 Thus, high school teachers may allow their students to confine and to experiment on animals without restriction, while college professors may not. Under the AWA, "livestock" of the same species are treated differently depending on their human use. 182 Transportation conditions of farm animals are regulated only for animals not used for flesh foods and clothing, which are the primary uses of such animals. 183 The AWA governs use of farm animals for laboratory experiments but excludes "livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber." 184 Thus, a cow used for experiments at a university may be treated differently depending on whether it is housed in a laboratory or a university farm. Similar inconsistencies apply to horses. The AWA only covers horses used in laboratory research.l85 Horses who are kept on farms, exhibited, considered companion animals, or raced do not fall under the Act, despite evidence of particularly cruel practices in horse racing. 186 7 U.S.C. § 2132(g). Nat!. Assn. of Biomedical Research, Rats and Mice: The Essential Need for Animals in Medical Research, http://www.nwabr.org/researchlpdfs/FBRRatsmice.pdf (last accessed Nov. 22, 2009). 178 U.S. Cong. Off. of Tech. Assessment, Alternatives to Animal Use in Research, Testing, and Education 25 (U.S. Govt. Printing Off. 1986). 179 Phys. Comm. for Responsible Med., Rats: Test Results That Don't Apply to Humans, http://www.pcrm.org/resch/anexp/rats.html (last accessed Nov. 22, 2009). 180 7 U.S.C. § 2132(e) (2006 & Supp. 2008) (defining "research facility"). 176

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182 Id. at § 2132(g) (defining the term "animal" under the Act to exclude most livestock). 183 Id. Under the Twenty Eight Hour Law of 1877, however, animals transported across state lines for flesh foods are entitled to hydration, food, and rest outside of the transport car after twenty-eight consecutive hours of travel, with some exceptions. 49 U.S.C. § 80502 (as amended 2006). 184 7 U.S.C. § 2132(g). 185 Id. at § 2132(g)(2). 186 See e.g. William C. Rhoden, Race's Afrermath Shows Sport's Brutal Side, 157 N.Y. Times Sports Sunday 1 (May 4, 2008); William C. Rhoden, An Unknown Filly Dies, and the Crowd Just Shrugs, 155 N.Y. Times D1 (May 25, 2006); John Scheinman, Horses,

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The HMLSA govems the slaughter of "livestock," but it does not apply to poultry and fish. 1 8 7 As a result, birds and fish need not be rendered unconscious prior to dismemberment. Around nine billion chickens, turkeys, and ducks are slaughtered per year, which is more than 98% of terrestrial animals slaughtered for flesh foods.l 88 Under the HMLSA, animals of the same species may be slaughtered in different ways depending on the downstream consumer of the flesh food. The Act's requirement that animals are rendered insensible prior to killing189 is usually met by "captive bolt stunning," a process approved by the USDA whereby a bolt applies force to, or penetrates the head of, the animal to render it unconscious. 190 Exceptions exist for ritual religious killing and may entail animals having their carotid arteries slashed and being hung upside down to drain the blood from their bodies. 191 Legal gerrymandering creates inconsistencies when animals with the same capacities-including those within the same legally created or species category-are treated differently. Two animals of the same legal class or species, with identical injuries, caused in the same manner, by the same person, may have different protections depending on the human interests at stake. The next section discusses inconsistent treatment of animals of different species and legal categories who share the same capacities. 2.

Animals of Different Species with Similar Abilities

Inconsistencies arise across legal classes of animals when animals with similar abilities are treated differently. For example, a pig, who has similar or higher intelligence than a dog, 192 may be immobilized and confined to a crate as "livestock" for the entirety of its life legally in almost every state, whereas like treatment of a dog as a "companion Drugs Are Racing's Daily Double: No Uniform Policy in Industry, 126 Wash. Post A1 (Apr. 27, 2003). 187 See Notice, Treatment of Live Poultry Before Slaughter, 50 Fed. Reg. 187 (Sept. 28, 2005). 188 See U.S. Dept. of Agric., Poultry Slaughter, http://usda.mannlib.cornell.edu/usda/ nass/Pou1Slau/2000s/2008/Pou1Slau-12-29-2008.pdf (last accessed Apr. 11, 2009); U.S. Dept. of Agric., Livestock Slaughter 2007 Summary, http://usda.mannlib.cornell.edu/ usda/nass/LiveSlauSu//2000s/2008/LiveSlauSu-03-07-2008_revision.pdf (last accessed Dec. 2, 2009) (reporting that about 146.9 million cattle, calves, hogs, sheep, and lambs were slaughtered in 2007). 189 7 U.S.C. § 1902(a) (2006 & Supp. 2008). 190 9 C.F.R. § 313.15 (2008); see also GAO, Humane Methods of Slaughter Act: USDA Has Addressed Some Problems but Still Faces Enforcement Challenges, http:// www.gao.gov/new.items/d04247.pdf, at 7, 12 (last accessed Dec. 5, 2009) (providing photographs of captive bolt stunning). 191 7 U.S.C. § 1902(b). 192 See e.g. James Collins, Probing Questions: Are Pigs Smarter Than Dogs?, http:// www.rps.psu.edu/probing/pigs.html (last accessed Nov. 22, 2009) (discussing the twenty-year research of Pennsylvania State University researcher Ken Kephart and his colleagues and the tasks that pigs and dogs may complete).

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animal" would result in prosecution for animal cruelty. 193 This is because the welfare of most livestock is legally relevant only during slaughter; protecting the well-being oflivestock more robustly conflicts with efficient mass production of flesh foods. As human interests are less detached from companion animals, companion animal welfare is legally relevant throughout the life of the animal. These inconsistencies, like the ones discussed above, ignore the natural baseline at the foundation of animal law, namely, that animal capacities are relevant for determining legal protections. Animals with like capacities are treated inconsistently in two notable areas: the conditions of confinement and the consequences of wrongful killing. Livestock are subject to different standards for confinement than companion, exhibition, and laboratory animals with similar capacities. Companion animals enjoy more protections against killing and with respect to the manner of their death than livestock and laboratory animals with like abilities. Under the AWA, laboratory animals; companion animals subject to care and transportation by a dealer; and animals exhibited in licensed zoos, reserves, and sanctuaries, receive protections concerning their conditions of confinement, basic nutrition, handling, transportation, and veterinary care. 194 Animals must be provided with enough space to stand up, to turn around, to lie down comfortably, and to walk normally.l95 In addition, laboratories are required to minimize pain and distress and to provide analgesics, anesthetics, and tranquilizers when necessary. 196 Special provisions mandate the exercise of dogs and psychological enrichments for primates. 197 Animals legally recognized as "livestock" and other farm animals, such as poultry, have no such federal protections. On factory farms, animals are often housed in poorly ventilated, dark, and windowless facilities. 198 Pregnant sows weighing as much as 600 pounds are kept in gestation crates, two-foot wide barred boxes with a concrete floor,

193 See e.g. State v. Babcock, 1999 Ohio App. LEXIS 3978 at **5-6 (Aug. 27, 1999) (citing Ohio Rev. Code Ann. § 959.13(A)(4): "No person shall: Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air ... ."); Tenn. v. Johnson, 2002 Tenn. Crim. App. LEXIS 540 at *53 (June 26, 2002) (finding that animals confined in kennel, trailer, and residence violated Tenn. Code Ann. § 39-14-202(b)). 194 7 U.S.C. § 2143 (2006 & Supp. 2008). 195 See e.g. 9 C.F .R. § 3.6(a)(2)(xi) (2008) (requirements for dogs and cats). 196 7 U.S.C. § 2143(3)(AHC). . 197 Id. at § 2143(a)(2)(B). 198 See e.g. J.J.R. Feddes, E.J. Emmanuel, M.J. Zuidhof & D.R. Korver, Ventilation Rate, Air Circulation, and Bird Disturbance: Effects on the Incidence of Cellulitis and Broiler Performance, 12 J. Applied Poultry Res. 328 (2003); M.J. Zuidhof, J.J.R. Feddes & F.E. Robinson, Effect of Ventilation Rate and Stocking Density on Turkey Health and Performance, 22 J. Applied Poultry Res. 123, 124 (1993); Singer, Animal Liberation, supra n. 30, at 98-105, and sources contained therein.

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where they are unable to turn around or to walk. 199 Pigs are intelligent and social animals who suffer severe physical injuries and psychosis from immobility. 200 They have joint and muscle damage; infections; and engage in neurotic behaviors such as obsessive bar-biting, vacuum chewing (chewing nothing), head shaking and tossing, kicking, and pressing against water containers. 201 Veal calves are immobilized in crates of similar size and are chained at the neck. 2 0 2 Throughout the entirety of their twenty-week lives, they are fed an allliquid diet to keep their flesh tender and white, rendering them anemic and often unable to stand. 203 Ninety-eight percent of eggs produced in the U.S. come from 300 million hens so intensely confined-four hens in a cube with sides about the size of a standard sheet of paper-that they cannot raise their heads or spread their wings and often are unable to stand. 204 The cages have limited ventilation and light due to severe crowding and the fact that they are stacked three or four high. 205 Egg-laying hens are de-beaked to prevent the pecking, cannibalism, and feather-pulling that otherwise result from the stress of their confinement. 206 Their nails may grow into their cages, rendering them unable to access food. 207 They are frequently starved in a process called "forced molting" to produce additional egg-laying cycles. 208 Hens no longer able to lay eggs and male chicks, both of no economic value, are commonly ground up alive, sometimes in wood-chippers, or thrown into garbage cans to die. 209 Veterinary attention for all farm animals is provided at the discretion of farmers. Large animals too sick or injured to stand, "downers," are often left for extended periods of time without food, water, or veterinary care, and then dragged to slaughter with chains or pushed by earth-moving equipment, which causes tearing and dislocation of 199 Farm Sanctuary, The Welfare of Sows in Gestation Crates: A Summary of the Sci· entific Evidence, http://farmsanctuary.org/mediacenter/gestation_evidence.html (last accessed Dec. 11, 2009). 200 Id. 201 ld. 202 Farm Sanctuary, The Welfare of Calves in Veal Production: A Summary of the Scientific Evidence, http://noveal.org/sci_evidence.htm (last accessed Dec. 11, 2009). 203 ld. 204 Farm Sanctuary, The Welfare of Hens in Battery Cages: A Summary of the Scien· tific Evidence, http://farmsanctuary.org/issues/factoryfarming/eggs/bc_evidence.html (last accessed Dec. 11, 2009). 205 Id. 206 Id. 207 Bernard Rollin, Farm Animal Welfare: Social, Bioethical, and Research Issues 126 (Iowa St. U. Press 2003) ("Battery cages are responsible for a variety of injuries, as birds are sometimes trapped in cages by the head and neck, body and wings, toes and claws, or other areas."). See also Farm Sanctuary, The Welfare of Hens in Battery Cages, supra n. 204 (discussing the "uncontrolled and excessive growth of the claws" of battery-caged hens). 208 Farm Sanctuary, The Welfare of Hens in Battery Cages, supra n. 204. 209 ld.

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limbs. 210 Recall that the only federal restriction on the suffering of livestock is found in the HMLSA, which states that prior to slaughter livestock must be rendered insensible; the other provisions of the Act protect human consumers and slaughterhouse workers. 211 Another significant distinction between farm and other domestic animals with the same capacities relates to the consequences of wrongful killing. All domestic animals are property under law and may be killed "humanely" at owner discretion, but legal remedies for wrongful killing are varied. If a third party kills a sheep in a farm or laboratory without owner permission, the owner is entitled to restitution. 212 If the same person kills a dog who is a companion animal, some jurisdictions allow recovery for emotional damages in addition to compensation for the market value of the pet.21a The only distinction between the legal treatment of the pig and the dog is human emotional attachment. The differential treatment has nothing to do with animal capacities or even property status. The latter point is worth emphasizing, as this example illustrates that changing the property status of animals alone would not remedy the effects of interest-convergence and the legal gerrymandering that follows. Rather, the differential treatment of animals mirrors social attitudes towards animals. Individuals who pamper their pets consume the flesh of equally or more intelligent animals suffering in factory farms. Consider another example. Millions of people order flesh foods over the Internet, including animals like lobsters who are shipped through the mail live, 214 often after being held in tanks for months with taped claws. 215 Despite studies indicating that lobsters feel pain, they are boiled alive prior to consumption. 216 Yet when an individual stated on an Internet site that he would cook and eat his pet rabbit, 210 Due to fear of Bovine Spongiform Encephalopathy ("Mad Cow Disease"), infirm cattle may no longer be slaughtered for human consumption, though other diseased farm animals remain unprotected. See supra n. 89 and accompanying text discussing recent changes to the law affecting "downer" cattle. 211 See supra nn. 87, 103-05 and accompanying text. 212 See e.g. Henley v. Octorara Area Sch. Dist., 701 F. Supp. 545, 547 (E.D. Pa. 1988) (discussing restitution paid by school boy who brutally murdered sheep and destroyed other farm property); State v. Violet, 1997 Tenn. Crim. App. LEXIS 451 at **1, 6 (Tenn. Crim. App. May 13, 1997) (discussing restitution for cow shot by a neighbor). 213 See supra nn. 9, 144-45 and accompanying text. 214 See e.g. The Fresh Lobster Company LLC, http://www.thefreshlobstercompany .com (last accessed Nov. 22, 2009). A Google search on December 9, 2009, using the terms "lobster shipping live," revealed approximately 874,000 matching websites. 215 See e.g. Patrik Jonsson, Demise of Grocery-Store Lobsters Renews Animal Welfare Debate, 98 Christian Science Monitor 2 (June 19, 2006) (available at http://www.csmonitor.com/2006/0619/p02s01-ussc.html (June 19, 2006) (last accessed Nov. 22, 2009)). 216 See e.g. Stuart Barr, Peter R. Laming, Jaimie T.A. Dick & Robert W. Elwood, Nociception or Pain in a Decapod Crustacean?, 75 Animal Behaviour 745 (2008); see also Colin Barras, Lobster Pain May Prick Diners' Consciences, New Scientist 14 (Nov. 10, 2007).

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Toby, unless website readers paid him $50,000, distraught readers world-wide paid to prevent Toby's demise. 217 Thus far the discussion has focused on the effects of legal gerrymandering on animal classifications and corresponding protections. The next section discusses the effects of legal gerrymandering on judicial practice, namely, the assessment of scientific evidence. It demonstrates another way in which fundamental protections for animals are undermined and legal inconsistencies are generated. 3.

Role of Scientific Evidence

A striking example of the danger of legal gerrymandering is seen in the context of judicial reluctance to consider objective, scientific evidence about animal suffering when doing so conflicts with human interest in using animals. A recent case indicates that conflicts over scientific evidence between industry and public authorities (or authorities disassociated from animal industries) may be resolved in favor of industry standards. 218 In contrast, cases about human suffering stress the need to rely on objective, scientific evidence. 219 In Daubert v. Merrell Dow Pharmaceuticals, Inc. ,2 20 the U.S. Supreme Court interpreted Rule 702 of the Federal Rules of Evidence to hold that expert testimony must be "not only relevant but reliable." To be reliable, the expert's testimony must be based on more than his or her unproven assertion. 221 As a result, the trial judge is to act as a filter for the reliability of expert scientific and other technical testimony.222 This principle is vital in cases challenging individual and industry uses of animals, where such expert scientific testimony may have an "ipse dixit" quality. 223 Problems of reliability arise with respect to professional association interpretations of scientific evidence. This issue is poignantly illustrated in a pre-Daubert case, Bragdon v. Abbott, 224 interpreting the 217 Toby Has Finally Been Saved!!!!!, http://www.savetoby.com (last accessed Dec. 5, 2009). 218 N.J. Socy. for the Prevention of Cruelty to Animals, 2007 WL 486764 at *8, overruled in part on other grounds, N.J. Socy. for the Prevention of Cruelty to Animals, 196 N.J. 366, 401--02 (N.J. 2008). 219 See infra nn. 224-27. See also School Bd. of Nassau County u. Arline, 480 U.S. 273, 288 (1987), superseded by statute on other grounds. 22o 509 U.S. 579, 589 (1993). 221 Id. at 591-92; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). 222 See e.g. Julie A. Seaman, Triangular Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L. J. 827, 862 n. 180 (citing Fed. R. Evid. 702 Advisory Committee note to 2000 amendment: "In Daubert the Court charged district judges with the responsibility of acting as gatekeepers to exclude expert testimony that is not reliable."). The Supreme Court recognized this gatekeeper function with regard to technical testimony in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 223 Gen. Elec. Co., 522 U.S. at 146; Kumho Tire, 526 U.S. at 157. 224 524 U.S. 624, 652 (1998).

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"direct threat" provision of the ADA. 225 In Bragdon, the U.S. Supreme Court questioned the First Circuit's use of a professional dental society statement about the dangers of HIV transmission. 226 The Court remanded, indicating deference should be given to information from neutral public health authorities. 227 When such reliability issues arise in the animal welfare context, however, courts do not apply the same standard. In recent landmark litigation challenging regulations under a New Jersey statute mandating that farming be "humane,"228 expert testimony of groups that use animals for commercial profit was given greater weight than assessments by independent animal behavioralists.229 Defendant New Jersey Department of Agriculture relied heavily on farm industry and animal professional association statements about the suffering of farm animals. 230 Plaintiff animal welfare groups, including the New Jersey Society for the Prevention of Cruelty to Animals, relied mostly on evidence produced by independent scientists. 231 The Superior Court of New Jersey acknowledged the inconsistencies among the experts and ultimately determined that it was proper to rely on the assessments of individuals involved in agribusiness and related professional associations about the cruelty inherent in their own practices. 232 To do so, the court argued that this was a matter of agency deference: 233 "Where the technical and scientific data is in conflict, an agency is entitled to rely on its own [largely industry] expertise ... 'we will not interfere with the [agency's] determination on 42 U.S.C. §§ 12101-12213 (2006 & Supp. 2007). 524 U.S. at 652 ("We note ... the [American Dental] Association is a professional organization ... not a public health authority. It is not clear the extent to which the Policy was based on the Association's assessment of dentists' ethical and professional duties in addition to its scientific assessment of the risk to which the ADA refers."). 227 Id. at 652-55. 228 "Humane" is defined as "marked by compassion, sympathy and consideration for the welfare of animals." N.J. Admin. Code Agric.: 2:8-1.2(a) (current through Nov. 16, 2009). "Animal welfare" is defined as "physical and psychological harmony between the animal and its surroundings characterized by an absence of deprivation, aversive stimulation, over stimulation or any other imposed condition that adversely affects health and productivity of the animal." ld. 229 N.J. Socy. for the Prevention of Cruelty to Animals, 2007 WL 486764 at *1, overruled in part on other grounds, N.J. Socy. for the Prevention of Cruelty to Animals, 196 N.J. 366, 401-D2 (N.J. 2008). 230 These statements include the American Veal Association Guide, the European Commission's Report on the Welfare of Intensively Kept Pigs, reports of the American Association of Bovine Practitioners and National Pork Board, science curricula at veterinary schools, and the United Egg Producer Standards. Id. at **5-12. 231 Plaintiffs experts are addressed only summarily throughout the opinion. See e.g. id. at *8 ("[S]cientists who have reviewed the issue have concluded that castration has no benefit to animal welfare."). 232 Id. at *6. 233 Id. 225

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these scientific matters.'" 234 This holding resulted in judicial recognition of pig gestation and veal crates and other methods of close confinement, castration of pigs without anesthesia,2 35 and de-beaking of poultry as "humane" under the terms of the statue, despite strong, objective scientific evidence to the contrary. 236 Agency deference remained significant on appeal. While the New Jersey Supreme Court struck down the regulatory safe-harbor for all "routine husbandry practices" as vague and held that the State Board of Agriculture could not subdelegate its authority to institutions teaching agricultural science, the court was careful to note that it would not assess the scientific evidence to determine whether any of the practices at stake were "objectively[] humane.'' 2 3 7 The treatment of scientific evidence in the animal context is yet another indicator of the power of legal gerrymandering to undermine statutes with the stated objective of promoting animal well-being. The New Jersey case illustrates that the "humane" treatment of animals may be interpreted to include most agricultural industry practices. As in the animal classification context, legal gerrymandering in this instance generates inconsistencies by treating differently animals with the same capacities to suffer. In sum, the disparate treatment of domestic animals may be understood in terms of legal inconsistencies that arise due to human interests dictating independent legal outcomes. These human interests result in legal gerrymandering, which undermines basic animal protections based on their legally recognized capacities. Animals within the same legally constructed classes, the same species, or with similar capacities are subject to varying treatment. This is illustrated vividly by the differential treatment of farm versus other domestic animals. Part IV examines one response to legal gerrymandering: moral compromises giving rise to humane labeling. IV.

LESSONS FROM HUMANE LABELING AND OTHER MORAL COMPROMISES

Daily consumer choices deny that the capacity of animals to suffer is morally relevant. The reason for this is obvious: If animal capacities are morally relevant, current use of domestic animals for food, experimentation, exhibition, entertainment, and some forms of service must end, or people must acknowledge engaging in daily, immoral practices. Flesh foods are undoubtedly the most contentious. According to the 234 ld. (quoting In reAdoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78, 101 (N.J. Super. App. Div. 2005)). 235 The Department of Agriculture acknowledges that castration has no benefit to the animal. N.J. Socy. for the Prevention of Cruelty to Animals, 2007 WL 486764 at *9. The benefit is economic, in that it prevents "tainting pork with foul odors and off flavors." !d. 236 Id. at **9-10. 237 N.J. Socy. for the Prevention of Cruelty to Animals, 955 A.2d at 889, 905--07,. 916-17.

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U.S. Department of Agriculture (USDA) National Agriculture Statistics Service, in 2008, over 9.5 billion animals including cattle (34,369,000), chickens (9,069,382,000), ducks (24,165,000), hogs (116,458,000), sheep and lambs (2,555,000), and turkeys (271,625,000) were slaughtered for flesh foods; the average person consumes more than 216 pounds of flesh and 252 eggs per annum. 238 While the cruelty of factory farms is well documented, flesh foods and eggs cannot be mass produced without factory farming, and consumers are unwilling to abandon flesh and egg consumption. 239 Given the schism between those who consider animal capabilities morally relevant and those who do not (or choose to ignore them), it is unsurprising that social practice and law reflect some element of compromise. One notable example of a moral compromise arises in the context of factory farming and the emergence of"humane labels." These labels, and the underlying reforms that accompany them, are an effort to respond simultaneously to animal advocates exposing the cruelty of factory farming practices and to the demands of flesh food producers and consumers. 240 The practices labeled as "humane" represent the least amount of suffering necessary to serve the economic goals of agribusiness and to fulfill human demand for flesh foods. Intermediate steps addressing animal suffering, like humane labeling, fail to further the basic capabilities of most farm animals and to alleviate their suffering. In practical terms, humane labeling means marginal improvements to intensive confinement of animals at a slightly higher cost to producers. 241 The first shift came with regard to chickens, when colleges and universities nation-wide eliminated all or part of their egg purchases from farms confining chickens to battery cages. 242 Whole Foods and Wild Oats grocery chains followed suit along with Bon Appetit food service company, Wolfgang Puck restaurants, Omni Hotels, Ben and Jerry's ice cream, and Burger King (only 2-4% of the eggs used by the latter corporation). 243 In addition, the State of California and some municipalities passed resolutions calling 238 Humane Socy. of the U.S., Farm Animal Statistics: Slaughter Totals, http://www .hsus.org/farmlresources/pubs; select U.S . .Slaughter Totals, then select Per Capita Consumption of Meat, then select Per Capita Consumption of Dairy and Eggs (Jan. 1, 2009) (last accessed Nov. 11, 2009) (website also provides 2009 slaughter numbers through August). 239 Singer, Animal Liberation, supra n. ·30, at 95-158. 240 See Jeff Leslie & Cass R. Sunstein, Animal Rights Without Controversy, 70 L. & Con temp. Probs. 117, 126-36 (2007). 241 Most businesses have agreed to bear the additional cost of cage-free egg production-about twice as much as traditional eggs-rather than pass it along to the consumer. See e.g. Allison Wickler, U Switches to Cage-Free, http://www.mndaily.com/2007/ 04/26/u-switches-cage-free (last accessed Nov. 22, 2009). 242 Humane Socy. of the U.S., The HSUS's Campaign to Ban Battery Cages, http:// www.hsus.org/farmlcamp/nbe (last accessed Nov. 22, 2009). 243 ld.

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for an end to battery cages. 244 Alternative methods of confinement provide two and a half to three times more space for hens, allowing them some room to move and to spread their wings. They remain densely penned, however, and may not have exposure to sun (or other light) or grass to engage in natural behaviors, and many are still de-beaked. 245 Similar compromises are seen in the pork industry. Smithfield Foods, the world's largest pork producer, agreed to eliminate gestation crates by 2017, and to require the farms with which it contracts to do so "eventually."246 In addition, fast food corporations such as Wendy's and Burger King vowed to reduce their reliance on pork from farms using gestation crates. 247 Pigs will remain closely confined indoors, though not in crates. 248 Firms have long periods for compliance or are making only small reductions-such as Burger King, which will reduce purchases from farms using gestation crates by 10-20%-due to the current lack of supply of "cruelty-free" pork. 249 Like animal protection laws, these reforms are the product of interest-convergence and are therefore vulnerable to changing human interests. The businesses involved frequently and publicly acknowledge that their willingness to alter their practices is based on consumer demand, rather than attention to animal well-being. Widely circulated articles such as Veal to Love Without the Guilt, discuss larger pens for veal calves as motivated by economies of production, taste, human psychological well-being (that is, the guilt of flesh consumers), desires to support local agriculture, and human health. 250 The article quotes a veal farmer who claims: "I did raise factory vealall the chemicals, antibiotics, steroids .... We wouldn't let our friends eat what we used to raise. For our own use we were raising humane 244 I d. California's Proposition Two also eliminates veal and sow gestation crates. See California Farm Animal Cruelty Act, Cal. Health & Safety Code Ann. §§ 25990-25994 (Lexis current through 2009-2010 Reg. Sess.) (amending Division 20). 245 Humane Socy. of the U.S., A Brief Guide to Egg Carton Labels and Their Relevance to Animal Welfare, http://www.hsus.org/farrn/resources/pubs/animal_welfare _claims_on_egg_cartons.html (last updated Mar. 2009) (last accessed Nov. 22, 2009). 246 Marc Kaufman, Largest Pork Processor to Phase Out Crates: Va.-Based Smithfield to End Practice of Keeping Pregnant Pigs in Small Cages, 130 Wash. Post A6 (Jan. 26, 2007) (available at http://www .washingtonpost.corn/wp-dyn/content/article/2007/01125/ AR2007012501785.html (Jan. 26, 2007) (last accessed Nov. 22, 2009)). 247 See Andrew Martin, Burger King Shifts Policy on Animals, 156 N.Y. Times C1, C4 (Mar. 28, 2007) (available at http://www.nytimes.com/2007/03/28/business/28burger .html (last updated Mar. 28, 2007) (last accessed Sept. 18, 2009)); Humane Socy. of the U.S., Wendy's Encouraging Suppliers to "Move Away" from Gestation Crate Confinement Systems for Breeding Pigs, http://www .hsus.org/farrn/news/pressrel/wendys_gestation _crates.html (Apr. 26, 2009) (last accessed Nov. 22, 2009). 248 See Martin, supra n. 24 7; Humane Socy. of the U.S, Wendy's Encouraging Suppliers, supra n. 247. 249 Martin, supra n. 247. 250 Marian Burros, Veal to Love, Without the Guilt, 156 N.Y. Times F1, F4 (Apr. 18, 2007), (available at http://www.nytimes.com/2007/04/18/dining/18veal.html (last accessed Oct. 13, 2009)).

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veal." 251 A distributor of fine flesh foods states, "(v]eal becomes more flavorful if it's allowed to walk around." 252 Only five states have outlawed cruelty for its own sake, and, in four of those states, battery cages are not forbidden. 253 The future of these measures is also uncertain. Following the public referendum in Arizona, several bills were introduced to impede future citizen initiatives. 254 A partial boycott of flesh food consumption through purchase of "humane" farm products fails to address the legal and moral inconsistencies in the treatment of farm animals. As long as flesh foods must be produced on a large scale in factory farms, farm animals with the same capacities as other legally protected animals will continue to receive different treatment. At best, over ten years some farm animals will have slightly more space i.n which to live before slaughter. At worst, the false perception that factory farming practices are humane will prevail, and the volume of flesh food consumption will remain the same or increase. 25 5 Perhaps the most pessimistic indicator of the results of moral compromise is changing views about foie gras. Under the traditional yet controversial method of foie gras production, geese and ducks are force-fed by a hard tube until their livers become ten or more times their usual size and burst, which causes sepsis and death. 256 Some view this practice as inhumane. Production of foie gras with a softer tube, where all other elements remain the same, is now accepted as humane. 257 Further, as the product of interest-convergence, humane labeling relies on changes to farm practices that promote flesh food flavor, otherwise enhance marketability of flesh foods, or soothe the conscience of flesh food consumers. Thus, humane labeling amounts to a continuation of policies and legal structures that support human interests over 251 Jd. 252 Id.

253 These states include Arizona, California, Colorado, Florida, and Oregon. See Ariz. Rev. Stat. Ann. § 13-2910.07 (West current through 2009 1st Reg. Sess. & 3d Spec. Sess.) (veal and sow gestation crates); Colo. Sen. 201, 66th Gen. Assembly, 2d Reg. Sess. (Mar. 6, 2008) (veal and gestation crates); Fla. Const. art. X,§ 21 (gestation crates); Or. Sen. 694, 74th Leg., 2007 Reg. Sess. (2007) (veal and gestation crates). See also supra n. 244 and accompanying text (California). 254 See e.g. Ariz. H. Con. Res. 2009, 49th Leg., 1st Reg. Sess. (Jan. 15, 2009) (limiting ballot initiatives to three per election); Ariz. H. Con. Res. 2033, 49th Leg., 1st Reg. Sess. (Feb. 10, 2009) (requiring ballot initiatives to be filed at least four months before the election); Ariz. Sen. Con. Res. 1023, 49th Leg., 1st Reg. Sess. (Jan. 27, 2009) (changing the required vote to initiate a ballot referendum from a majority to two-thirds). 255 See e.g. Burros, supra n. 250 (discussing increased consumption of "humane" veal). 256 Farm Sanctuary, The Welfare of Ducks and Geese in Foie Gras Production: A Summary of Scientific and Empirical Evidence, http://www .nofoiegras.org/FGscience_report .html (last accessed Nov. 22, 2009). 25 7 Juliet Glass, Foie Gras Makers Struggle to Please Critics and Chefs, 156 N.Y. Times F9 (Apr. 25, 2007).

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animal well-being. If human interest in these aspects of food production wanes, perhaps in the wake of rising food prices and a troubled economy, so too will the limited protections offered to animals by the humane labeling movement. Similar conclusions may be drawn about other moral compromises that appear to protect animal well-being. Some animal research institutions voluntarily seek review of their practices from independent firms, allowing the institutions to claim a "gold standard" of care. 258 Such inspections serve to quiet some opposition to experimentation, though these institutions are agreeing only to adhere to minimal legal protections for animals. 259 In addition, when the institutions have foreknowledge of site inspections, observed laboratory practice may not represent usual procedure. New racing track surfaces for horses provide another example of a false compromise. Costly polymer tracks are purchased to quell concerns about the cruelty of horse racing, as it is believed that these tracks cause fewer bone fractures. 260 Yet racehorses remain subject to both breeding practices and cruel training regimes that increase the propensity for fractures, including racing at a young age before their bodies are able to sustain the stress. 261 Horses who are injured on the track are frequently killed on site or sent to foreign slaughterhouses.262 As these examples indicate, "humane" labeling and other moral compromises will likely result in minimal improvements for some animals and abusive practices for most. Worse, such compromises may arrest larger social change required to eliminate the causes and perpetuation of the exploitation of animals for human use. A paradigm shift is necessary to promote animal well-being. V.

CRITIQUE OF OTHER LEGAL SOLUTIONS

Legal scholars propose a number of solutions to address the dearth of protections for domestic animals. Proposals typically either 258 See Assn. for Assessment and Accreditation of Laboratory Animal Care Inti., What is AAALAC?, http://www.aaalac.org/abou1Jindex.cfm (last accessed Nov. 22, 2009). 259 See Assn. for Assessment and Accreditation of Laboratory Animal Care Inti., Rules of Accreditation, http://www.aaalac.org/accreditationlrules.cfm (last accessed Nov. 22, 2009). 260 See e.g. Bill Finley, New Synthetic Surface for Thoroughbreds Hits Pay Dirt, 155 N.Y. Times D3 (Feb. 8, 2006) (available at http://select.nytimes.com/searchlrestrictedl article?res=F10911FD3F5AOC7B8CDDAB0894DE404482 (Feb. 8, 2006) (last accessed Nov. 22, 2009)). 261 See e.g. William C. Rhoden, Filly's Death Raises Issues and Ire, 157 N.Y. Times D1, D3 (May 7, 2008) (available at Filly's Death Brings Issues to Fore, but Where Is the Accountability?, http://www .nytimes.com/2008/05/07/sports/othersports/07rhoden.html (May 7, 2008) (last accessed Nov. 22, 2009)) (discussing various cruelties associated with horse racing). 262 Humane Socy. of the U.S., Get the Facts on Horse Slaughter, http://www.hsus.org/ horses_equines/issues/get_the_facts_on_horse_slaughter.html (last accessed Nov. 22, 2009) ("Horses commonly slaughtered include unsuccessful race horses .... ").

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suggest changing the legal status of domestic animals-from property to "living property"263 or "persons"264 -or altering the allowable uses of animals regardless of whether they are classified as property. 265 This Part argues that current proposals cannot overcome deeply entrenched inequalities in current law that result from legal gerrymandering or the hierarchy problem of human rights or interests being privileged over those of animals. Gary Francione has long argued in seminal works that, in a legal world divided between persons and property, nonhuman animals should be treated as persons. 266 A "person," according to Francione, is one who has "morally significant interests." 267 The problem with the current legal treatment of animals, as he sees it, is that "we balance animal interests unprotected by claims of right against human interests protected by claims of right in general and, in particular, by claims of human property rights in those animals." 26B He argues that even under acts such as the Animal Welfare Act (AWA), which purport to focus on animal welfare, human property interests in laboratory and other animals covered under the Act result in animal exploitation. 269 Researchers are allowed to treat animals as tools for scientific inquiry, so long as very basic needs are met-supplying merely enough food, hydration, and space to sustain life. 27 0 A move toward personhood, as Francione suggests, would entail a dramatic departure from current legal treatment of animals as property. While personhood certainly does not equate with being human, it usually requires the recognition of higher-order cognitive properties. 271 As persons, animals would have legal rights to avoid suffering Dillard et al., supra n. 30, at 95. See Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? 100--{)2 (Temple U. Press 2000) (arguing for the legal treatment of animals as "persons"); Francione, Rain Without Thunder, supra n. 30, at 177-89 (same); Gary L. Francione, Animals, Property, and the Law 14 (Temple U. Press 1995) (same); see also Wise, supra n. 30, at 63-88, 179-238 (explaining the similarities of chimpanzee, bonobo, and human minds). 265 See e.g. Bryant, Similarity or Difference, supra n. 33, at 239-43 (articulating a nondiscrimination approach to the well-being of all animals); Bryant, Animals Unmodified, supra n. 64, at 162-94 (same). 266 See Francione, Introduction to Animal Rights, supra n. 264, at 100--02; Francione, Rain Without Thunder, supra n. 30, at 177-89; Francione, Animals, Property, and the Law, supra n. 264, at 14. 267 Francione, Animals, Property, and the Law, supra n. 264, at 100. Francione appeals to equal consideration yet eschews Singer's properties model as a device for identifying morally relevant capacities other than suffering. It is unclear how other morally relevant capacities are identified as well as how inevitable conflicts under his rightsbased model are resolved between persons. 268 Id. at 91. 269 Id. at 165-250. 270 Id. 271 The notable exception is for corporations, which are recognized as "persons" under the law. 1 American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 1.28(b)-(c) (2005) ("'Person' means ... any form of organization, including a corporation, a partnership or any other form of association, any form of trust 263 264

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and to continued existence. Recognizing personhood could afford domestic animals something akin to Constitutional Equal Protection. 272 The personhood model has a number of limitations. The move to legal personhood simply pushes the issue of conflicting capacities and interests to a higher level, demanding resolution of the same conflicts among persons. Further, the exploitation of animals runs deeper than our legal system and whether we legally call animals "persons" or "property." Animal use is entrenched in religious and philosophical thought and thereby embedded in social practice. 273 It is possible to call animals "persons" and not to consider their capacities to suffer, when recognizing such capacities conflicts with individual or state interests in animal use. For example, children are no doubt persons, yet their interests are routinely sacrificed by those with whom they have a dependency relationship. 274 In addition, legal personhood does not equate with being a member, let alone an equal member, of a moral community; laws recognize corporations as persons, for instance. 275 Lastly, for personhood status to be meaningful under Francione's terms, sentient animals of all abilities would have to be granted personhood under law, and lower animals, such as mice, are unlikely to receive this status. One solution would be to develop a property model where animal interests are adequately considered, that is, the suffering of animals and their interest in continued existence are appreciated. A thoughtful proposal by David Favre advocates such a paradigm, where owners of domestic animals would retain legal title over animals who enjoy a form of"equitable self-ownership." 276 Through self-ownership, animals could hold equitable interests in other property (such as the house in which they live) and have standing to sue on their own behalf. 277 Equitable self-ownership recognizes that animals have intrinsic worth.2 78 In addition, it acknowledges that the dependency relationship between particular human and nonhuman animals imposes duties on human guardians to care for animals, as defined by existing anti-cruelty stator estate, a government or any political subdivision, or an agency or instrumentality of government, or any other legal or commercial entity."). 272 See supra n. 32 and accompanying text. 273 See supra n. 3 and accompanying text. See also Satz, Would Rosa Parks Wear Fur?, supra n. 32, at 141-45. 274 See e.g. Martha Albertson Fineman, Dependency, Companion to the Child (forthcoming) (on file with author) (discussing how dependency makes children vulnerable to parental interests); Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency 4--,54 (N.Y. Press 2004) (discussing the inequalities within families affecting children's welfare); Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 Cardozo L. Rev. 1747, 1748-49 (1993) ("[P]arents' rights, as currently understood ... undermine those values of responsibility and mutuality necessary to children's welfare."). 275 See supra n. 271 and accompanying text. 276 David Favre, Equitable Self-Ownership of Animals, 50 Duke L.J. 473 (2000). 277 !d. at 501-02. 278 !d. at 495.

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ues. 279 In more recent work, Favre simplified and renamed this paradigm, treating animals as "living property." 280 This paradigm creates the same duties of care on behalf of human guardians of animals, though it does not support animals holding equitable interests in property or having standing to sue. 281 In response to such expanded property views, Francione arguesinvoking slavery by analogy-that property status prevents the recognition of rights and results in devaluation and degradation. 282 The analogy is at best a loose one, however. Unlike human slaves, domestic animals are permanently and completely dependent on human care. Granting personhood status does not change animal dependency. The solution lies with understanding this dependency relationship and guarding against exploitation of the vulnerable subject based on that dependency. It is difficult to imagine that if we considered seriously animal interests in avoiding suffering and continued existence, and abolished factory farms and the killing of livestock for flesh foods, for example, that farm animals would still be devalued and degraded. The expanded property approach faces other more difficult challenges, however. It is unlikely to resolve moral or legal inconsistencies resulting from the unequal treatment of animal suffering, as protection relies on a case-by-case assessment under current laws, which entrench unequal treatment. 2 83 Further, recognizing animals as possessing intrinsic worth does not translate into equal treatment of their capacities, given the hierarchy problem of rights-based (and interests-based) approaches. 2 8 4 An alternative property approach is used in the wildlife context. Animal life is viewed as an intrinsically important part of the ecosystem. Under the Endangered Species Act of 1973 (ESA) 285 and other statutes, animals are held in trust. 2 8 6 There is no individual title to wild animals, and the state controls access to them. 287 While animals are treated as nonpersons, a trustee or guardian has standing to seek protections on their behalf. 288 While this approach does not require a case-by-case analysis, the obvious limitation is that the ESA and other wildlife statutes do not !d. at 497-501. Dillard et al., supra n. 30, at 95; see also David Favre, Living Property: A New Status for Animals within the Legal System (forthcoming Marq. L. Rev., Spring 2010). 281 Dillard et al., supra n. 30, at 95; see also David Favre, Living Property, supra n. 280. 282 Francione, Introduction to Animal Rights, supra n. 264, at 131-34. See also id. Foreword, at xii. 283 See supra nn. 74-76 and accompanying text discussing Fineman's view of substantive equality. 284 See supra nn. 58---83 and accompanying text. 285 16 U.S.C. §§ 1531-1544 (2006 & Supp. 2008). 286 !d.; see also Geer v. Conn., 161 U.S. 519, 529 (1896) (Wildlife is held in "trust for the benefit of the people."). 287 16 U.S.C. §§ 1531-1544. 288 !d. 279 280

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speak to individual animals who may need protection. They do, however, embrace the intrinsic value of animals, which translates into the domestic animal setting. As under Favre's approach, individual domestic animals could be recognized as having intrinsic value rather than value relative to human interest. 289 The problems of hierarchy and operating under existing laws that fail to consider equally animal capacities remain, however. The legal personhood, expanded property, and trustee proposals rely on a change in legal status to generate greater animal protections. Granting animals personhood would give them access to existing legal protections for persons, but it is unclear how the human-nonhuman animal dynamic would change, given the hierarchy problem. Deeming humans trustees or other types of guardians of animals would allow greater enforcement of existing animal protections, which entrench inequalities. Another approach is to argue for a more foundational legal paradigm shift that removes the presumption of animal use for human interest. Such an approach is based on both animals' rights to noninterference and affirmative obligations of care, stemming from the human-nonhuman animal dependency relationship. Taimie Bryant has adeptly moved the discussion in this direction. In Animals Unmodified, Bryant appeals to a right to noninterference for all living animals, including bacteria, and argues that advocates should develop alternatives to animal use to meet human needs. 290 Bryant's approach encapsulates some elements of the wildlife paradigm, in the sense that humans live in an ecosystem where organisms are mutually dependant.291 Under Bryant's view every animal, even one who is non-sentient, is part of our moral community. 292 Bryant argues that legal paradigms that afford animals protections based on certain properties or capacities should be abandoned. 293 Under the properties view, there is an inevitable hierarchy of interests, and some animals will always have fewer properties and be 289 The concept of intrinsic value is misunderstood by courts. See e.g. Bueckner v. Hamel, 886 S.W.2d 368, 375 (Tex. App. 1st. Dist. 1994) (Intrinsic value requires human attachment, "usefulness," or "special value to the owner.") (Andell, J., concurring). 290 Bryant, Animals Unmodified, supra n. 64, at 162-94 (embracing a nondiscrimination approach to animal well-being); see also Bryant, Similarity or Difference, supra n. 33, at 239-43 (same). 291 Bryant, Animals Unmodified, supra n. 64, at 162-94 (embracing a nondiscrimination approach to animal well-being); see also Bryant, Similarity or Difference, supra n. 33, at 239-43 (same). 292 Bryant, Animals Unmodified, supra n. 64, at 162-94 (embracing a nondiscrimination approach to animal well-being); see also Bryant, Similarity or Difference, supra n. 33, at 239-43 (same}. This claim is similar to claims about the rights of nature. See Roderick Frazier Nash, The Rights of Nature: A History of Environmental Ethics (History ofAmerican Thought and Culture) (U. Wis. Press 1989) (documenting the history of thought that extends moral claims to nature). 293 Bryant, Similarity or Difference, supra n. 33, at 211-26.

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treated as inferior. 294 Recall, for example, the problem with Singer's argument that all sentient animals require equal consideration of their interests to avoid suffering. Animals with higher-order capacities may suffer in greater ways than animals with lower order capacities, which may prevent the recognition of the interests of the latter. 295 It is difficult to know how Byrant's approach would operate in practice, however. If every animal has moral significance and one cannot create a hierarchy based on sentience, how are conflicts among interests resolved? Without criteria to resolve such conflicts, the default position has been to resolve them in favor of human interests. As demonstrated by environmental regulations affecting wild animals, human interests outweigh all but the interests of endangered species (and sometimes even those interests). 296 It seems that the recognition of animal capacities matters for meaningful and sustainable protections. While I seek to address the hierarchy problem in another manner, and resist extending moral status to nonsentient beings, Bryant's work contributes to my own. Drawing on Bryant's arguments for a presumption against exploitation, it is possible to advance another framework that recognizes animal capabilities as morally relevant. VI.

EQUAL PROTECTION OF ANIMALS PARADIGM

This Part advances a new paradigm to regulate human use of animals that better responds to animal suffering: Equal Protection of Animals (EPA). EPA combines vulnerability and capability theory and the principle of equal protection. Section A addresses why human and nonhuman animals have equal claims to basic capabilities. Section B discusses theoretical approaches to capabilities. Section C extends Amartya Sen's conception of capabilities as functionings to nonhuman animals and provides examples of how EPA would work in practice. A.

Equal Claims to Basic Capabilities

Many scholars argue that since animals are part of our moral community, we should consider them equally on certain grounds. Recall Singer's equal consideration of interests principle, which states that the interests of sentient animals (animals with the capacity to suffer) in avoiding pain and suffering are to be considered equally with human interests stemming from the pleasure derived from animal use. Regan's rights theory holds that animals should be protected universally because of their inherent value. The difference between these conceptions of equality lies with how the claims-interests or rights-are enforced. Singer's view is an outId. at 216-20. See supra nn. 51-{56 and accompanying text. 296 See supra nn. 136-40 and accompanying text discussing the lack of protection for timber wolves in Alaska. 294

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come-oriented (consequentialist) view that weighs the interests of animals and humans. Regan's view is deontological and imposes on humans a duty that prohibits the use of animals in certain ways. EPA invokes equality in a different manner. The paradigm supports the view that animals have equal claims to basic capabilities based on their capacity to suffer and their status as vulnerable subjects. These basic capabilities are to be equalized to the greatest extent possible within a given population of human and nonhuman animals.297 EPA is outcome-oriented but not utilitarian; it focuses on maximizing basic capabilities (not utility) within a given population. B.

Capability Approaches and Equal Protection

EPA is based on a capability approach to well-being that values what an individual can do or be in a lifetime. As recently recognized by Martha Nussbaum, capabilities are enabled by the equal protection principle. In the civil rights context, Nussbaum claims that courts essentially ask the question: "[W)hat are these people actually able to do and to be ... [in order to) unmas[k) [) device[s) for the perpetuation of hierarchy." 298 and beings" are how capabilities are generally defined. 299 Nussbaum and Amartya Sen each offer a capability approach stemming from different philosophical traditions. Nussbaum's theory draws from Aristotelian, utilitarian, and social contract theory to articulate a threshold level of capabilities to promote human dignity. Sen's theory is consequentialist and seeks to maximize capabilities within a given population. Though Sen's theory was developed first, I begin with Nussbaum's work, as Sen's theory is the one that informs EPA. 1.

Capabilities as Dignity

Martha Nussbaum's theory of capability equality has evolved over time. 300 In her most recent work, she describes her approach as based on the notion of human dignity. 301 Capabilities are distributive units that contribute to human dignity by allowing people to realize what they "are actually able to do and to be."302 Nussbaum makes an analogy to human rights concepts and argues that there is a minimum level of capabilities that must be provided to all humans. 303 She identi297 Amartya Sen, Equality of What?, in Liberty, Equality, and Law: Selected Tanner Lectures on Moral Philosophy 369 (Sterling M. McMurrin ed., U. of Utah & Cambridge U. Press 1987). 298 Martha C. Nussbaum, Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 Harv. L. Rev. 4 (2007). 299 Amartya Sen, Capability and Well-Being, in The Quality of Life 31 (Martha Nussbaum & Amartya Sen eds., Clarendon Press 1993). 300 Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Mem· bership viii-ix (Belknap Press 2006). 301 Id. at 70. 302 Id. 303 Id.

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fies a working list of ten capabilities, including life, health, bodily integrity, "[s]enses, [i]magination, and [t]hought," emotions, "[p]ractical [r]eason," affiliation, other species relations, play, and "[c]ontrol over lo]ne's [e]nvironment" (political and material).304 Unlike Amartya Sen, Nussbaum applies her theory directly to animals.305 She argues that animals may be part of our moral community based on sentience306 or other morally relevant capacities, such as those for movement, emotion, or affiliation. 307 Using "sympathetic imagining" of animal behavior, 308 she applies her ten capabilities developed in the human context to nonhuman animals.309 One problem with Nussbaum's theory is that it is unclear how capabilities that support dignity are identified. She argues that relevant capabilities for animals are "important and good," 310 but it is difficult to know what that means, since she rejects human or other animal nature as good. 311 Peter Singer rightly suggests that the difficulty of conceptualizing what is important and good under Nussbaum's theory tempts one to argue that what is good is "be[ing] able to satisfy some of [one's] strongest considered preferences," and this collapses Nussbaum's theory into utilitarianism. 312 The primary difficulty with Nussbaum's model, however, is that she recognizes species distinctions for flourishing. 313 For this reason, it seems that her theory cannot avoid dominance of human over animal capabilities. She argues that animals should have "adequate opportunities" for flourishing, 314 but what if opportunities-such as roaming free in territory that is now developed as residential-conflict with human notions of flourishing? Nussbaum presents morally dictated vegetarianism and animal experimentation as tough issues, 315 but these are exactly the difficult issues for which we must have answers. As discussed with regard to the limits of humane labeling, a more radical approach is required to advance animal well-being significantly.

!d. at 392-401. !d. at 346-407. 306 Nussbaum, Frontiers of Justice, supra n. 300, at 351, 392-401. 307 !d. at 362. 308 !d. at 355. 309 !d. at 392-401. 310 !d. at 193, 34 7, 311 !d. at 366-72. 312 Peter Singer, A Response to Martha Nussbaum, http://www.utilitarian.net/singer/ by/20021113.htm (Nov. 13, 2002) (last accessed Nov. 22, 2009). 313 Nussbaum, Frontiers of Justice, supra n. 300, at 362~6, 383-84. 314 !d. at 384. 315 !d. at 401--05. 304 305

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Capabilities as Functionings

Amaryta Sen's theory of basic capability equality316 seeks to maximize capabilities across given populations. 317 Unlike Martha Nussbaum, Sen does not speak of promoting dignity through a set of capabilities believed to be universally significant, but rather of enabling certain types of functional outcomes or "functionings" depending on an individual's biology and other limitations. 318 As a result, individuals choose a capabilities set that speaks to their biological capacities as well as external limitations, such as financial, legal, or other restrictions.319 The capabilities set chosen by a given population is maximized.320 Basic capability equality is egalitarian, as members of a population have the same potential for having their chosen capabilities maximized. 321 The ability to consider various levels and means of functioning, as well as to provide equal chances that the valued capabilities of every individual will be maximized, is paramount to extending Sen's theory to nonhuman animals. Sen expresses his model formally, and I interpret his theory in other work. 322 What is important for present purposes is the fact that the model is flexible enough to consider a spectrum of basic capabilities. Capabilities may be very general, such as the ability to have health, to exercise, or to have intellectual stimulation. They may also be specific, like the ability to breathe freely, to metabolize food, or to sleep. The capabilities mentioned thus far may all be considered vital goods. Basic capabilities may also include less significant goods, such as the ability to be entertained, to posses certain material goods, or to live in a particular location. Within a given population, then, basic capability equality may be applied to various levels of the functionings that individuals seek to maximize. Sen does not apply his model to nonhuman animals. It does not, however, seem too much of a stretch to apply his theory in this way. Almost any population of human animals will be one in which nonhu316 Sen discusses his theory in a variety of works. See Amartya Sen, Commodities and Capabilities (Oxford U. Press 1999); Amartya Sen, Inequality Reexamined (Harv. U. Press 1992); Sen, Capability and Well-Being, supra n. 299; Sen, Equality of What?, supra n. 297; Amartya Sen, On the Foundations of Welfare Economics: Utility, Capability and Practical Reason, in Ethics, Rationality and Economic Behaviour (Francesco Farina et a!. eds., Clarendon Press 1996); Amartya Sen, The Standard of Living: Lecture I, Concepts and Critiques and The Standard of Living: Lecture II, Lives and Capabilities, in The Standard of Living (Geoffrey Hawthorn ed., Cambridge U. Press 1987); Amartya Sen, Well-Being, Agency, and Freedom: The Dewey Lectures 1984, 82 J. Phil. 169 (1985). 317 This means that the framework is consequentialist-concerned with consequences-but nonutilitarian, as the "units" to be maximized are capabilities, not utils. 318 Sen, Capability and Well-Being, supra n. 299, at 31. 319 Sen, Commodities and Capabilities, supra n. 316, at 6-11. 320 Id. 321 Id. 322 Ani B. Satz, Toward Solving the Health Care Crisis: The Paradoxical Case for Universal Access to High Technology, 8 Yale J. Health Policy L. & Ethics 93 (2008).

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man animals reside. Consider the national population, or populations of states or municipalities, universities, laboratories, farms, zoos, military or police units, or households. All sentient animals have basic capabilities pertaining to suffering and perhaps other higher-order capabilities as well. While nonsentient beings might share capabilities with sentient animals, such as the ability of plants to be nourished, I leave the possibility of extending Sen's theory in this manner to others. Like Singer, I draw a moral line at sentience, possibly somewhere in the animal kingdom "between a shrimp and an oyster."323 The egalitarian premise of basic capability equality-that the valued capabilities of every individual have equal potential to be maximized-could be extended to nonhuman animals. Human and nonhuman animals within a population would have equal chances to maximize their capabilities. Combined with the equal protection principle and vulnerability theory, this gives rise to EPA. Sen's capabilities approach offers two significant benefits over Nussbaum's approach. First, it avoids species distinctions, which, as discussed below, allows for equal protection of animal capabilities at least at the most basic level. Second, it does not assume that all organisms will benefit from the capabilities Nussbaum identifies. Some human and nonhuman animals may not be able to attain these capabilities.324 These individuals have claims to maximizing other basic capabilities under EPA. C.

Extending Capabilities to Nonhuman Animals

Sen's capabilities approach informs EPA to the extent that human and nonhuman animals with like capacities must be treated alike. Under Sen's model, relevant capabilities depend on the abilities of a given organism to function in particular ways. For example, animals with higher mental capacities will have different capabilities than animals with lower intellectual abilities. These differences are not confined to species variations per se, but rather result from variations in human and nonhuman animal biology. This Section focuses on the most basic capabilities important to human and nonhuman animals alike. Consider the capabilities to be fed, hydrated, "clothed" (have bodily integrity, including avoiding bodily pain), and sheltered; to exercise and to engage in natural behaviors of movement; and to have companionship. Now contemplate the current legal treatment of factory farm animals. Nourishment and hydration of farm animals is at the discretion of the farmer. Remember that veal calves are provided only milk until they are too anemic to stand, and chickens are starved to force molting to stimulate egg production. While nonhuman animals obviously do not wear clothes, they may have bodily integrity, giving rise to Singer, Animal Liberation, supra n. 30, at 174. Michael Ashley Stein, Disability Human Rights, 95 Cal. L. Rev. 75, 77 (2007) (discussing disabled humans). 323

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an analogy about maintaining animals' natural protective coverings. Farm animals experience tail docking, de-beaking, and mulesing. 325 Sheep may be sheared prematurely, a practice that ensures that wool is collected before sheep start to shed, which may result in death. 326 Factory farm animals cannot exercise or engage in natural behaviors of movement, as they are confined to battery cages, gestation crates, or veal crates. They do not experience companionship. The same exercise can be performed with regard to laboratory and companion animals. Minimal protections exist for laboratory animals for food, hydration, and shelter, but they do not maximize these capabilities. There is a spectrum of well-being between not starving and being well-fed; similar arguments may be made about hydration and shelter. Having enough room to stand, turn around, and lie down does not constitute maximal shelter. Further, only dogs and primates have exercise requirements. 327 As for bodily integrity, laboratory animals' natural coats are damaged during invasive surgical experiments, where portions of their fur and skin are removed for better observation or manipulation of their internal organs and tissues, and some experiments are directed at animals' skin, eyes, or nails. 328 It is unlikely that many laboratory animals experience companionship. Companion animals come closest to having these very basic capabilities maximized. A well-cared-for pet may have proper nourishment, hydration, exercise, and shelter; possess a healthy coat and nails; and have companionship. In fact, some companion animals may have higher-order capabilities maximized, like the capability to travel, to be 325 "Mulesing" is when the skin and flesh near the posterior of sheep is cut (often without painkillers) to prevent maggot infestation in the wool. See e.g. U.S. Dept. of Agric. Ctr. forMed., Agric. & Veterinary Entomology, Research and Extension Needs for Integrated Pest Management for Arthropods of Veterinary Importance 231 (Christopher J. Geden & Jerome A. Hogsette eds.), http://www.ars.usda.gov/sp2UserFiles/Place/ 66151020/downloads/lincoln.pdf (last updated Oct. 2001) (last accessed Nov. 22, 2009). 326 I.W. Lugton, Cross-Sectional Study of Risk Factors for the Clinical Expression of Ovine Johne's Disease on New South Wales Farms, 82 Aust. Vet. J. 355, 360, 364 (2004). 327 7 U.S.C. § 2143(a)(2)(B) (2008); see also 9 C.F.R. § 3.8 (2008) (exercise for dogs). 328 See e.g. P.B. Lavenex, D. G. Amaral & P. Lavenex, Hippocampal Lesions Prevent Spatial Relational Learning in Adult Macaque Monkeys, 26 J. Neuroscience 4546 (2006) (discussing surgery to expose monkeys' brains to inject them with acid). The Draize test has been used since 1944 to test chemicals in the eyes and on the skin of animals. John H. Draize, Geoffrey Woodard & Herbert 0. Calvery, Methods for the Study of Irritation and Toxicity of Substances Applied Topically to the Skin and Mucous Membranes, 82 J. Pharmacal. & Exp. Therapeutics 377, 379-83 (1944). The skin tests are performed on immobilized and unanesthetized animals on a shaven and abraded surface, and the area is covered with rubber or plastic after the chemical is applied. Id. at 379~3; see also Nat!. Antivivisection Socy., Animals in Product Testing: Animal Tests, http://www .navs.org/site/PageServer?pagename=ain_pt_animal_tests (last accessed Nov. 22, 2009). During the ocular tests, animals are immobilized and not anesthetized, and their eyes are clipped open, often for days. Draize, Woodard & Calvery, Methods for Study of Irritation and Toxicity of Substances, supra at 384-87; Nat!. Antivivisection Socy., Animals in Product Testing: Animal Tests, supra. These tests may cause severe burning, bleeding, itching, and ulceration. Nat!. Antivivisection Socy., Animals in Product Testing: Animal Tests, supra.

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educated through positive reinforcement training or other mental stimulation (compare this to "enrichments" for laboratory animals to keep them sane), 329 and to have entertainment or to play. As the common horrors of puppy mills, animal hoarding, and animal cruelty and neglect cases indicate, however, basic capabilities are not maximized by current legal structures. Animal cruelty statutes come into play only in the worst cases, and they may not be enforced when resources are devoted to human causes.330 Laws maximizing even the most basic capabilities of domestic animals, such as the ability to have nutrition, hydration, shelter, bodily integrity, companionship, and exercise and to engage in natural behaviors of movement, would dramatically reshape animal protections. Factory farms would be abolished, though one could imagine some smallscale farming operations. It is doubtful that most animal experimentation could continue. Certainly invasive procedures would interfere with one or more of these basic capabilities, and behavioral research involving intensive confinement fails to maximize the capability to exercise and to engage in natural behaviors of movement. Alternatives to invasive animal experimentation such as research on non-sentient beings like fruit flies, computer or math modeling, chemical analyses, and consensual human experimentation could be employed. Behavioral research on domestic animals would require significant alterations to confinement. Studies of wild animals, whose natural territory usually spans tens of miles, would likely take place through human observation of animals in the wild. Companion animals could be kept in certain conditions. Since the populations at stake include humans who also have claims to the maximization of these basic capabilities, my arguments for nonhuman animals rest on a couple of key assumptions. First, humans do not need to consume flesh to have proper nourishment. Second, animal experimentation does not improve the enumerated basic capabilities for humans. These assumptions are disputed, though many compelling studies and reports support their validity. For decades, a vegetarian diet has been considered at least as healthy as a carnivorous one,33l and, for some medical conditions such as diabetes, 9 C.F.R. § 3.81 (2008). See Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals as Property, and the Presumed Primacy of Humans, 39 Rutgers L.J. 24 7, 296 (2008); Frasch et al., State Animal Anti-Cruelty Statutes, supra n. 106, at 70. 331 See e.g. Am. Dietetic Assn., Position of the American Dietetic Association and Dietitians of Canada: Vegetarian Diets, 103 J. Am. Dietetic Assn. 748 (2003) (concluding that "[a]ppropriately planned vegetarian diets have been shown to be healthful, nutritionally adequate, and beneficial in the prevention and treatment of certain diseases. Vegetarian diets are appropriate for all stages of the life cycle."); Johanna T. Dwyer, Health Aspects of Vegetarian Diets, 48 Am. J. Clinical Nutrition 712 (1988) (reviewing studies indicating similar or lower mortality rates as well as decreased risks for obesity, hypertension, heart disease, type II diabetes, gallstones, and other diseases for vegetarians as compared to omnivores). 329 330

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it may be recommended. 332 Further, more resources are consumed to raise flesh than grain for food, and fewer people are fed as a result. 333 In addition, factory farms are significant producers of greenhouse gas emissions world-wide. 334 With regard to animal experimentation, studies suggest we gain little if any information that translates into clinical use (in part due to the difference between animal and human physiology), and information could be obtained by other means. 335 It is also difficult to imagine animal experimentation benefiting the very basic capabilities that we are discussing. However, even if one rejects these assumptions, maximizing human and nonhuman animal capabilities within the same population will require the abolition of many current practices, like factory farming and animal research as it is currently performed, because continuing them would ignore basic animal capabilities altogether. VII.

IMPLICATIONS OF EXTENDING EQUAL PROTECTION

A nondiscrimination approach to animals like the one described in Part VI will likely meet criticism. First and foremost, it could be argued that animals are not part of our moral community, and, as aresult, they do not need stronger legal protection. In Part II, I suggested that the arguments of Singer and others are compelling on this point, namely that animals have properties, such as the capacity to suffer, which are morally relevant. These properties give rise to the universal vulnerability of human and nonhuman animals discussed in that Part and aid in the identification of the shared basic capabilities of animals addressed in Part VI. To argue that animal capabilities such as those related to suffering do not matter morally, one must proffer and defend a speciesist argument. Such an argument violates a fundamental postulate of equality, by treating some animals with the same capacities differently. The sections that follow address additional possible objections to maximizing human and animal capabilities and the implications of applying EPA to existing law. 332 See e.g. Andrew Nicholson, Diabetes: Can a Vegan Diet Reverse Diabetes?, http:// www.pcrm.org/health/clinres/diabetes.html (last updated Feb. 15, 2005) (last accessed Nov. 22, 2009). 333 See e.g. Frances Moore Lappe, Diet for a Small Planet (4th ed., Random House 1991); Erza Klein, The Meat of the Problem, http://www.washingtonpost.com/wp-dyn/ content/article/2009/07/28/AR2009072800390.html (July 29, 2009) (last accessed Dec. 16, 2009) (discussing a 2006 United Nations report and studies conducted at the University of Chicago and Carnegie Mellon University). 334 See e.g. Sharon Friel et al., Global Health Equity and Climate Stabilisat\on: A Common Agenda, 372 Lancet 1677, 1680 (2008) ("Livestock production (including transport of livestock and feed) accounts for nearly 80% of the agricultural sector's greenhouse gas emissions."). 335 See e.g. Pandora Pound et al., Where Is the Evidence that Animal Research Benefits Humans?, 328 Brit. Med. J. 514 (2004); see also Phys. Comm. for Responsible Med., Animal Experimentation Issues, http://www.pcrm.org/resch/anexp (last accessed Nov. 22, 2009).

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"They are just animals, and, without us, they would not exist."

One possible objection to EPA is that humans created the domestic animals at stake, and, as a result, should be able to use them as they please. In other words, domestic animals would not exist independently of human action, so humans should be able to use them for their benefit. While it is true that domestic animals are introduced by humans, it is tautological to argue that therefore they may be forced to suffer for human desire. Human creation does not justifY unbounded human use. A human child may be created for many reasons-to feel fulfilled, to combat loneliness, to try to save or to encourage a marriage, to create an heir, or to provide a blood or tissue donor for a different child-but it is illegal (and immoral) to cause that child suffering in particular ways. One cannot legally neglect, indenture, or otherwise abuse children. Another related argument is that the creation of domestic animals, even for human use, results in greater happiness. This total utility argument is that there is greater happiness in greater numbers. 336 This leads to a related question about the benefits of existence versus nonexistence-would a veal calf on a factory farm be better off if it had not been born at all? 337 To address these questions, it is necessary to consider suffering. Arguments for breeding most domestic animals are weak, as the lives of factory farm, laboratory, and abused companion animals are miserable from birth to death. For domestic animals who do not suffer cruel treatment and whose dependency needs are addressed, such as well-cared-for companion animals, the issue becomes more difficult. However, lam inclined to believe that, all things equal, it is better not to hold animals in captivity due to the frustration of natural behaviors of movement, and greater numbers of domestic animals should not be created. 338 B.

Inevitable Conflicts and the Need to Start with Basic Capabilities

Perhaps the greatest hurdle for EPA-or any paradigm that recognizes certain capacities or properties of animals as morally relevant-is the inevitable conflicts that arise between the maximization of human and nonhuman capabilities within a given population. Conflicts arise when human capabilities are furthered by using animals, for example, when the ability to be entertained is supported by animal fighting, circuses, or zoos. Bryant and others argue we must not appeal to hierarchies of capacities, or nonhuman animals will always lose. 339 336 J.J.C. Smart & Bernard Williams, Utilitarianism: For and Against 27-28 (Cambridge U. Press 1973). 337 Singer, Animal Liberation, supra n. 30, at 228. 338 It is my view that the harms of captivity outweigh the hanns of domestic animal species endangerment or extinction, but that is a subject for another time. 339 Bryant, Similarity or Difference, supra n. 33, at 216-20.

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Francione argues, with regard to domestic animals, that these are "false conflicts."3 40 Humans create domestic animals for their use and control and then act is if they are balancing their human interests with those of animals. 341 The classic example is animal husbandry, which as a matter of routine, professional practice involves intensive confinement, castration and de-beaking without anesthesia, and other cruel practices. 342 In this context, where some animals are never allowed to take one step after birth, it is argued that the well-being of the animals is considered and balanced against human interest in consuming flesh foods. 343 Recall that Francione argues that it is the property status of animals that causes the hierarchy problem. 344 If animals are property, their interests and capacities will always be given less weight than human interests and capacities. A pig's capacity to suffer and to have a continued existence will never outweigh the farmer's property (and economic) interest in intensively confining and killing her. The latter, in fact, would be considered moral under Singer's view, if animals could be raised without suffering and killed painlessly. 345 The solution to the issue, I believe, lies in the application of the capabilities model to nonhuman animals. First, while it is certainly true that most humans have more capacities for which to account, the capabilities involved in preventing the cruelty and suffering at stakehaving necessary food and hydration, maintaining bodily integrity, being sheltered, and having the ability to exercise/engage in natural behaviors of movement and to experience companionship-are universal and very basic to life. Thus, it is likely these capabilities will be chosen by humans to be maximized within a given population of human and nonhuman animals. Second, the egalitarian principle embedded within Sen's model requires equal potential to realize these capabilities. Under his framework, animals will have equal claims to having the six basic capacities maximized. Third, under the capabilities model, the conflict between human interest in using animals to realize "higher" capabilities and very basic animal capabilities is a weak one. While it is true that maximizing the very basic capabilities of human and nonhuman animals will undermine some higher human capabilities-such as the ability to consume flesh-foods, to benefit from new beauty and household products tested on animals, and to wear the skins of animals for fashion-the per340 Gary Francione, Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein, supra n. 56, at 247. 341 !d. 342 See supra nn. 22-23, 124-26, 198-211, 245--48, 256-57 and accompanying text discussing husbandry practices. 343 See supra n. 46 (discussing balancing) and nn. 198-211 (discussing intensive confinement). 344 See supra nn. 266-70 and accompanying text. 345 See supra n. 56 and accompanying text. While EPA could support a right to continued existence, that argument requires further development elsewhere.

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ceived conflict embodies a misperception. These capabilities are framed in terms of the use of animals to realize them, rather than the realization of the capabilities themselves. The capabilities to eat, clean, wear make-up, and dress fashionably do not require the use of animals. The same is true for entertainment, companionship, police work, medical and veterinary school training, scientific research, and the many other contexts in which animals are exploited. In other words, capabilities may be realized in various ways. 346 Thus, it is possible to focus on maximizing the most basic capabilities associated with avoiding suffering across a population. Only after these capabilities are maximized does it make sense to discuss possibly competing claims of human and nonhuman animals to higher-order capabilities. Practically speaking, emphasis should be placed on shaping legal and social institutions to recognize animals as vulnerable subjects and to support alternatives to animal use. C.

Equality and the Decline of Human Exploitation of Animals

EPA is a nondiscrimination approach to animal welfare. Such an approach relies on a presumption against the use of nonhuman animals. Currently, the opposite is true, as animal use is presumed legal absent exception. The paradigm has a number of advantages over other proposals. It moves beyond the historically paralyzing discussion about whether animals are persons or property and attacks the legal and social sources of animal suffering. EPA demonstrates that property status need not determine the level of protection for animals; under EPA, animals experience equality in the consideration of their capabilities regardless of their legal characterization.347 EPA also avoids speciesism and other problems of hierarchy. Animals are included within our moral community based on their universal vulnerability with respect to their basic capabilities. This vulnerability is addressed under my extension of Sen's capabilities framework, when capabilities are maximized across populations inclusive of human and nonhuman animals. The basic capabilities of human and nonhuman animals are promoted on equal terms. As the capabilities at stake are the most basic to life, humans representing their own interests as well as those acting as advocates for animals will choose to maximize them across the relevant population. While including animals in this way may undermine some "higher-order" human capabilities focused on the use of animals, these human capabilities may be realized in other ways. 346 For a database of alternatives for veterinary school training, see Assn. of Veterinarians for Animal Rights, Alternatives in Education Database, http://alted.avar.org/ (last accessed Oct. 13, 2009) (including synthetic and computer models). 347 Cass Sunstein has also argued that viewing animals as property need not undermine their protection. See Cass R. Sunstein, Slaughterhouse Jive, The New Republic 40, 43--44 (Jan. 29, 2001).

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As addressed in Part VI, Section C, EPA requires the end to many of the current uses of domestic animals. Factory farming and laboratory experimentation infringe on a number of the six enumerated basic capabilities. In practical terms, EPA requires that the laws affecting animals as primary subjects in these contexts (the laws addressed in Sections III.A.1-2 and B) are altered to account directly for these capabilities. For example, the Animal Welfare Act (AWA) and the Humane Methods of Livestock Slaughter Act (HMLSA) could be amended to mandate the maximization of the six enumerated basic capabilities. These laws might be applied to small-scale farming operations as well as to researchers conducting investigations of animals in their natural habitats. Enforcement mechanisms could remain the same, with the U.S. Department of Agriculture providing oversight through on-site inspections of domestic operations and approval of research protocols for experimentation occurring overseas. Statutory violations could be subject to civil penalties, unless the deprivation of basic capabilities rises to animal cruelty, in which case individuals would be subject to prosecution and criminal penalties would apply. Legal changes to laws affecting animals as secondary subjects are more complex. In Section III.A.3, I discuss the use of domestic animals as accommodations for disabled individuals and those in need of emotional support under disability and fair housing statutes. While the six basic capabilities at stake may be realized by some animals used for these purposes, they are not currently legally protected unless human behav:ior amounts to animal cruelty. Civil statutes could be created to protect these basic capabilities. Severe deprivations of basic capabilities could still be prosecuted under state animal anti-cruelty statutes. VIII.

CONCLUSION

When interest-convergence frames the laws affecting domestic animals, they receive minimal protections and. are rendered hyper-vulnerable to changing human use. Legal gerrymandering for human benefit occurs when the natural baseline for animals-their inherent capacities-is ignored to support human uses of animals, and the most fundamental protections for animals against suffering are disrupted. Often animals within the same legal classes and natural species are treated differently, as are animals with the same capacities from different species. This undermines animal protections and creates legal inconsistencies. EPA seeks to regulate human use of domestic animals in a legally consistent and ethical manner. The paradigm creates a presumpti