Disability and the social contract

University of Chicago Law Review

Volumn 74, Issue 4, 2007, Pages 1615-1640

  Silvers, Anita ^a   Steine, Michael Ashley ^b,c  

^a SAN FRANCISCO STATE UNIVERSITY   (United States)

^b The College of William and Mary

^c Harvard Project on Disability

Author keywords

[No Author keywords available]

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EID: 38049121445     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: 10.2307/20141872     Document Type: Review

References (120)

1. See generally David Boucher and Paul Kelly, eds, The Social Contract from Hobbes to Rawls (Routledge 1994) (collecting essays about social contract theory).
2. See Deborah A. Stone, The Disabled State 22 (Temple 1984) ("The rationale behind the[] categories" of the socially excluded and needy "is that something inherent in the conditions they describe prevents people from working, no matter how strong the will to work in individual cases.").
3. The Social Security Disability Insurance program provides benefits to a person with a disability "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy." 42 USC § 423(d)(2)(A) (2000). The Supreme Court underscored the presumption of disability as determinative of an inability to work in Cleveland v Policy Management Systems Corp, 526 US 795, 807 (1999), by holding that an American with Disabilities Act (ADA) plaintiff had to show how a reasonable accommodation in the workplace would overcome the crucial aspects of the employment-related dysfunction on which her Social Security Disability Insurance status was based.
4. See generally David A. Weisbach, A Welfarist Approach to Disabilities (unpublished manuscript, Dec 2006) (proposing ways that the tax system can compensate for the greater costs generally associated with economically discernable disabilities). Three points tangential to this discussion bear noting. First, some disabled people do not require accommodations to interact socially.
5. See Michael Ashley Stein, Labor Markets, Rationality, and Workers with Disabilities, 21 Berkeley J Empl & Labor L 314, 317-20 (2000). Second, most accommodations are necessary only because of the manner that social convention has chosen to organize the structured environment.
6. See Anita Silvers, Formal Justice, in Anita Silvers, David Wasserman, and Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy 13, 73-75 (Rowman & Littlefield 1998). Third, the majority of accommodation costs seem negligible.
7. See Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 Duke L J 79, 102-09 (2003).
8. See Amartya Sen, Equality of What?, in Sterling M. McMurrin, ed, 1 Tanner Lectures on Human Values 217-18 (Utah 1980) (discussing the reduced marginal utility of a "cripple").
9. See generally John Rawls, A Theory of Justice (Belknap 1971).
10. But see Lawrence C. Becker, Reciprocity, in Lawrence C. Becker and Charlotte B. Becker, eds, 3 The Encyclopedia of Ethics 1464, 1465 (Routledge 2d ed 2001) (stating that a fitting and proportional response need not be identical in kind and quantity to the original benefit or harm).
11. See Susan Dunn, ed, Something that Will Surprise the World: The Essential Writings of the Founding Fathers 257 (Basic 2006) (letter from John Adams to John Taylor referencing Socrates and Plato).
12. See Samuel Freeman, Justice and the Social Contract: Essays on Rawlsian Political Philosophy 3 (Oxford 2007) ("John Rawls is widely recognized as the most significant and influential political philosopher of the twentieth century.").
13. Rawls's influence on a broad spectrum of legal thinkers is evidenced by, among other things, the stature of the contributors to Symposium, Rawls and the Law, 72 Fordham L Rev 1381, 1382 (2004) (noting the presence of numerous "outstanding scholars").
14. See Rawls, A Theory of Justice at 15 (cited in note 6) ("The intuitive idea is that since everyone's well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated.").
15. See id at 12 ("Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like.").
16. Id at 139.
17. See id.
18. See id at 86 ("[P]ure procedural justice obtains where there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.").
19. See, for example, Charles W. Mills, The Racial Contract 63-69 (Cornell 1997) (averring that social contract theory positions African Americans at a disadvantage where justice is concerned);
20. Patricia J. Williams, The Alchemy of Race and Rights 224 (Harvard 1991) ("Contract law reduces life to fairy tale. . . . [A]ctivity is caged in retrospective hypotheses about states of mind at the magic moment of contracting.");
21. Carole Pateman, The Sexual Contract 6 (Stanford 1988) (arguing that the model reaches only a restrictive mutuality that shapes society by privileging men and denying recognition to women).
22. See, for example, Ann Cudd, Contractarianism, in Edward N. Zalta, ed, The Stanford Encyclopedia of Philosophy (Spring 2003), online at http://plato.stanford.edu/archives/spr2003/ entries/contractarianism (visited Sept 29, 2007) (stating that the premise that contracting parties must be able to contribute to the social product of interaction leaves many people, such as the severely disabled, "outside the realm of justice").
23. See, for example, Lawrence C. Becker, Reciprocity, Justice, and Disability, 116 Ethics 9, 39 (2005) ("[M]utual advantage theories, at least, have a good deal to say about justice for the disabled.").
24. See generally Anita Silvers, Agency and Disability, in Becker and Becker, eds, 1 Encyclopedia of Ethics 39 (cited in note 7) (stating that whether individuals with disabilities can command their moral duties of care turns on whether social practice permits them to be perceived as mutually engaged with others in morally important enterprises).
25. See generally Lawrence C. Becker, Social Contract, in Becker and Becker, eds, 3 Encyclopedia of Ethics 1607 (cited in note 7).
26. See, for example, Anita Silvers and Leslie Pickering Francis, Justice through Trust: Disability and the "Outlier Problem" in Social Contract Theory, 116 Ethics 40, 58-68 (2005) (discussing "contracting with trust," which "acknowledges and even foregrounds the human conditions of vulnerability and dependence while preserving the idea that important moral and political relationships between people are illuminated by the contracting model").
27. See, for example, Henry S. Richardson, Rawlsian Social-Contract Theory and the Severely Disabled, 10 J Ethics 419, 420 (2006) (revising Rawlsian social contract theory to include individuals with severe disabilities);
28. Ravi A. Malhotra, Justice as Fairness in Accommodating Workers with Disabilities and Critical Theory: The Limitations of a Rawlsian Framework for Employing People with Disabilities in Canada, in Diane Pothier and Richard Devlin, eds, Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law 70, 70 (UBC 2005) (doing the same for workers with disabilities).
29. See, for example, Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 117 (Routledge 1998) (introducing a public ethic of care);
30. Eva Feder Kittay, When Caring is Just and Justice is Caring: Justice and Mental Retardation, 13 Pub Culture 557, 573 (2001) (advocating care for individuals with mental retardation "as part of a broader idea of reciprocal Social Cooperation").
31. Nussbaum addresses these inadequacies at pp 96-223 (disability), pp 224-324 (nationality), and pp 325-407 (species membership).
32. Nussbaum's most comprehensive previous articulation focused on women's capabilities. See generally Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge 2000).
33. For another treatment of disability, see generally Martha C. Nussbaum, Capabilities and Disabilities: Justice for Mentally Disabled Citizens, 30 Phil Topics 133 (2002).
34. The capabilities approach was originated by Nobel Prize-winning economist Amartya Sen. Two representative examples of his work are Amartya Sen, Development as Freedom (Anchor 1999);
35. Amartya Sen, Development as Capability Expansion, in Keith Griffin and John Knight, eds, Human Development and the International Development Strategy for the 1990s 41 (Macmillan 1990).
36. An elaboration of the underlying differences between Nussbaum and Sen is provided in David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, 20 Polit Theory 584 (1992);
37. David Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, Part II, in Martha C. Nussbaum and Jonathan Glover, eds, Women, Culture, and Development: A Study of Human Capabilities 153 (Clarendon 1995).
38. Respectively: life (the faculty to live one's full lifespan); bodily health (having good health, including reproductive ability); bodily integrity (freedom 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 reason (critical 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 participation) and material surroundings (through property ownership and holding employment).
39. The requirement is based on states' desire for legitimacy. As Francis M. Deng argues, when states do not adequately protect their citizens, they in turn lose their moral arguments that sustain sovereignty. See Francis M. Deng, et al, Sovereignty as Responsibility: Conflict Management in Africa 33 (Brookings 1996).
40. By determining what fundamental entitlements states owe their citizens, Nussbaum's capabilities scheme diverges significantly from Sen's formulation. Sen describes capabilities as "what a person can, in fact, do or be," distinguishing the distribution of goods from the capability to use them. He acknowledges that some individuals, including disabled persons, have both fewer resources and less ability to convert resources to capabilities. The result is that some persons require more resources than others. Hence a uniform entitlement scheme has the potential to be both under- and over-inclusive. Amartya Sen, Inequality Reexamined 31, 37, 113 (Harvard 1992).
41. Sen has declined to form or support a capabilities list, believing that such a catalog would undercut democratic political discourse. He has, however, assisted in the design of the United Nations Development Programme's Human Development Reports, which are notable for failing, thus far, to address the situation of disabled persons. See Martha C. Nussbaum, Poverty and Human Functioning, in David B. Grusky and Ravi Kanbur, eds, Poverty and Inequality 47, 47-48, 61 (Stanford 2006).
42. For contrary views of how social contract theory might be construed, see Lawrence C. Becker, Social Contract at 1607 (cited in note 18);
43. Anita Silvers, Agency and Disability at 39 (cited in note 18).
44. Comparing results published in the United Nations Development Programme's annual Human Development Report series illustrates this point. Without fail, one can find countries with substantially identical per capita GNP figures whose rates of female literacy vary wildly. Yet one would be hard pressed to argue that the women in countries with lower individual literacy live well in relation to those in higher individual literacy states, despite the equivalence in average (seemingly gender neutral) GNP determinants. One also cannot determine from the aggregate GNP figures how much wealth any particular woman in any given state requires to achieve literacy. These reports are available online at http://hdr.undp.org/reports (visited Sept 29, 2007).
45. See also Kittay, Love's Labor at 154-55, 166, 172, (cited in note 21) (describing Sesha's preferences).
46. See also Michael Bérubé, Life as We Know It: A Father, a Family, and an Exceptional Child 147 (Vintage 1996) (describing Jamie's preferences).
47. See generally Silvers and Francis, 116 Ethics 40 (cited in note 19); Michael Ashley Stein, Disability Human Rights, 95 Cal L Rev 75 (2007).
48. See Silvers and Francis, 116 Ethics at 54 (cited in note 19).
49. Id at 54.
50. Compare generally Cass R. Sunstein and Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U Chi L Rev 1159 (2003) (arguing that, through exploiting bounded human rationality, it is possible to influence behavior while preserving individual choice).
51. Thus, although Nussbaum's capabilities approach is set forth in terms of agency, 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 communicating makes them better able to participate without being burdensome to others.
52. Compare Kenji Yoshino, Covering, 111 Yale L J 769, 772 (2002). Yoshino argues that sexual minorities assimilate in three different ways: converting (changing their underlying identity), passing (retaining their underlying identity but masking it to observers), and covering (retaining and disclosing their underlying identity, but making it easy to ignore).
53. See id. See also Ilan H. Meyer, Minority Stress and Mental Health in Gay Men, 36 J Health & Soc Beh 38, 39-42 (1995) (describing sociological accounts of the effect that assimilation pressure has on gay men);
54. James D. Woods, The Corporate Closet: The Professional Lives of Gay Men in America 74-75 (Free Press 1993) (same).
55. See generally Erik Parens, ed, Surgically Shaping Children: Technology, Ethics, and the Pursuit of Normality (Johns Hopkins 2006);
56. Alice Domurat Dreger, Intersex in the Age of Ethics (University Publishing Group 1999).
57. For illustrations of how people with disabilities are subjected to social pressure to comply with medical judgments that are risky and may render them even less functional than before, see generally Anita Silvers, Bedside Justice: Personalizing Judgment, Preserving Impartiality, in Rosamond Rhodes, Margaret P. Battin, and Anita Silvers, eds, Medicine and Social Justice: Essays on the Distribution of Health Care 235 (Oxford 2002).
58. In order to set a limit on who should receive state resources, the qualities of living a dignified human life are defined by a list of central capabilities. Consequently, individuals who fall below those markers are tragic cases and, according to Nussbaum, in that respect not fully human. Nussbaum makes this point in several places, for example on p 187 (evaluating the life of Sesha Kittay as someone for whom a "flourishing human life" that is "worthy of human dignity" is out of the question).
59. Undergirding this notion is a prevailing normative assumption that in a just society everyone should have the ability, if they so choose, to interact with and take part in general culture because "individuals cannot flourish without their joining with other humans in some sorts of collective activities." Anita Silvers, People with Disabilities, in Hugh LaFollette, ed, The Oxford Handbook of Practical Ethics 300, 318 (Oxford 2003).
60. For two examples, see Amy L. Wax, A Reciprocal Welfare Program, 8 Va J Soc Policy & L 477, 516 (2001) (developing a "welfare system motivated by overarching principles of social reciprocity");
61. Anita L. Allen, Social Contract Theory in American Case Law, 51 Fla L Rev 1, 38 (1999) ("Whether one takes a sympathetic or an unsympathetic philosophical view of social contract theory, one must admit the possibility that the intellectual foundations of American law include social contract theory.").
62. Jerry Mashaw has suggested that when discussing disability-related policy choices, foundational issues should be eschewed in favor of pragmatic and prudential considerations. See Jerry L. Mashaw, Against First Principles, 31 San Diego L Rev 211, 221 (1994). We agree that policy discourse ought to include concrete proposals, but strongly disagree that "just" theorizing is inadequate.
63. See generally Martha C. Nussbaum, Why Practice Needs Ethical Theory: Particularism, Principle, and Bad Behavior, in Steven J. Burton, ed, The Path of the Law and its Influence: The Legacy of Oliver Wendell Holmes, Jr. 50 (Cambridge 2000) (asserting that philosophical theorizing is a necessary ingredient in analyzing large systemic issues).
64. 274 US 200 (1927).
65. Id at 205 (famously concluding that "[t]hree generations of imbeciles are enough").
66. Id at 206.
67. Id at 207.
68. In fact, prior to Buck being heard by the Supreme Court, courts and legislatures had in many cases pulled back from imposing sterilization precisely because of objections from the presumptive sacrificees or their guardians. See Robert L. Burgdorf and Marcia Pearce Burgdorf, The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons, 50 Temple L Q 995, 1000-01 (1977).
69. Although this characterization does not make it into Justice Holmes' opinion, the testimony from the trial bears this out. At multiple points, witnesses testified about the social inadequacy of Carrie Buck's offspring, noting that her child was illegitimate. One Red Cross social worker who testified on behalf of the state was asked on cross examination if illegitimate children were a sign of feeblemindedness. The reply: "No, but a feebleminded girl is much more likely to go wrong." Excerpts of the testimony are available online at http://law.jrank.org/pages/ 13291/Buck-v-Bell.html (visited Sept 29, 2007).
70. See generally Anita Silvers and Leslie P. Francis, A New Start on the Road Not Taken: Driving with Lane to Head off Disability-Based Denials of Rights, 23 Wash U J L & Policy 33 (2007) (tracing the history and predicting the future of Supreme Court jurisprudence upholding as constitutional state exclusion of disabled persons on the ground of inconvenience).
71. That assertion was at the heart of the Eugenics movement. See generally Edwin Black, War against the Weak: Eugenics and America's Campaign to Create a Master Race (Four Walls Eight Windows 2003).
72. See generally Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability (Routledge 1996) (describing the influence of disability-exclusive images of bodily norms on the social construction of disability).
73. For arguments that disability law ought to focus primarily on eliminating subordination, see generally Samuel R. Bagenstos, Subordination, Stigma, and "Disability," 86 Va L Rev 397 (2000).
74. See, for example, Stephen A. Siegel, Justice Holmes, Buck v. Bell, and the History of Equal Protection, 90 Minn L Rev 106, 107 (2005) (noting that nearly "[e]verything about Holmes's opinion in Buck v. Bell has been subjected to withering criticism");
75. Paul A. Lombardo, Taking Eugenics Seriously: Three Generations of Imbeciles Are Enough?, 30 Fla St U L Rev 191, 217 (2003) (characterizing the decision as "a moralistic, backward judgment about eugenics").
76. See William Branigin, Va. Apologizes to the Victims of Sterilizations, Wash Post B1 (May 3, 2002) (quoting Virginia Governor Mark R. Warner apologizing for the state's practices on the seventy-fifth anniversary of Buck).
77. Fifteen years later, in Skinner v Oklahoma, 316 US 535, 541-42 (1942), the Court prohibited the State of Oklahoma from sterilizing a thrice-convicted chicken thief, but took pains to assure that the prohibition would not be read as constraining states from sterilizing noncriminal disabled persons based on "biologically inheritable traits." States seem to have taken this admonition to heart as they continued to sterilize people with various disabilities until as recently as 1979. See Silvers and Francis, 23 Wash U J L & Policy at 93 (cited in note 49).
78. Parenthetically, although we doubt a contemporary Supreme Court addressing a factual scenario comparable to Buck would rule in a similar manner, the Court's disability jurisprudence does reflect a similar outlook, namely that disabled persons incommode society and that disability rights are not the same as those of other historically subordinated groups. See generally Silvers and Francis, 23 Wash U L J & Policy 33 (cited in note 49);
79. Michael Ashley Stein, Same Struggle, Same Difference: ADA Accommodations as Antidiscrimination, 153 U Pa L Rev 579 (2004).
80. For our previous discussion of retrograde Supreme Court methodology, see Anita Silvers and Michael Ashley Stein, Disability, Equal Protection, and the Supreme Court: Standing at the Crossroads of Progressive and Retrogressive Logic in Constitutional Classification, 35 U Mich J L Reform 81, 92 (2002).
81. See note 24.
82. 20 USC § 1400 et seq (2000 & Supp 2004).
83. 458 US 176 (1982).
84. See id at 184.
85. Id. A qualified sign-language interpreter was placed in Amy's kindergarten class for a two-week experimental period, but the interpreter had reported that Amy did not need his services at that time. Her individual educational program also provided that Amy should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. Id at 184-85.
86. Id at 215 (White dissenting).
87. Id at 203 (majority).
88. Id at 189-90 ("Certainly the language of the statute contains no requirement like the one imposed by lower courts - that States maximize the potential of handicapped children commensurate with the opportunity provided to other children.") (quotation marks omitted).
89. Lawyers and philosophers may use different terminology in assessing equality; hence an explanatory note is warranted. Treating people the same (initially) is treating them equally (ultimately) only if they are similar to one another in the relevant ways. Treating people equally underwrites their being afforded equal opportunity. Affording equal opportunity to people who do not resemble each other in the relevant ways does not require, and is not always compatible with, equal treatment. A bone of contention in these schemes is the baselines that determine relevant characteristics as well as relative position in society, as is graphically the case in ongoing debates over affirmative action. See Silvers, Formal Justice at 127 (cited in note 4) (providing the example of placing two bowls of dog food, equally, atop a four-foot-high table for both a Great Dane and a Dachshund).
90. Although the capabilities approach might seem to be committed to maximizing valuable outcomes by developing people's capabilities to the fullest extent, this is not so. Nussbaum explicitly eschews such a purely consequentialist view (pp 338-42). For Nussbaum, outcomes must be assigned a more limited political role in order to make room for differences in people's conceptualizations of the ultimate good (p 341). Thus the idea that political obligation is informed by a partial conception of the good: a central content - threshold levels of the central capabilities - that everyone would or should endorse. Of course, construing political obligation in terms of maximizing capabilities faces practical difficulties as well. Such a requirement calls for greater resources than bringing capabilities just to the species-typical threshold. Further, differences in individuals' talents could increase disparities in advantage if everyone's capabilities are maximized to the greatest possible extent. While obligating the State to enable such disparate outcomes seems unfair, however, so does allowing the State to support some individuals but not others in pursuit of maximizing their capabilities.
91. Of course, schools could equalize the situation for deaf children in other ways, for example, by offering all instruction to all children online in the form of text. In this case, hearing and deaf children would be treated identically in that the visual mode of instruction is equally accessible to them.
92. Rowley v Board of Education of the Hendrick Hudson Central School District, 483 F Supp 528, 534 (SDNY 1980).
93. Pub L No 94-142, 89 Stat 773 (1975), codified as amended at 20 USC § 1400 et seq (2000 & Supp 2004).
94. The underlying legal rationale for this shift is open to dispute. Some commentators argue that Rowley was undone by the 1997 amendment to the IDEA'S preamble, see 20 USC § 1400(c)(5)(A), which references meeting developmental goals "to the maximum extent possible" and thus meeting "the challenging expectations . . . established for all children." For an example of a court that agrees with this reading, see J.L. v Mercer Island School District, 2006 US Dist LEXIS 89492, *11 (WD Wash) (holding that as amended, the IDEA stresses self-sufficiency), reconsidered 2007 US Dist LEXIS 10343 (WD Wash) (reconsidering as to document identification and attorney fees). But see Lieutenant T.B. v Warwick School Committee, 361 F3d 80, 83 (1st Cir 2004) (holding that the amended language does not overrule Rowley). A second rationale is that 20 USC § 1414(d)(3)(B)(iv) mandates that individual education plans consider the "full range of needs" and "opportunities."
95. 774 F2d 629 (4th Cir 1985) (holding that there were adequate grounds for determining that a school had failed to provide a dyslexic student with a free and appropriate public education under the EAHCA).
96. See id at 636.
97. See Mark C. Weber, The Transformation of the Education of the Handicapped Act: A Study in the Interpretation of Radical Statutes, 24 UC Davis L Rev 349, 390-92 (1990) ("The court supported its holding with the plain language of the Act.").
98. Id at 393.
99. Pub L No 101-336, 104 Stat 327 (1990), codified at 42 USC § 12101 et seq (2000).
100. For a detailed account, see the legal memorandum posted by the National Association of the Deaf, online at http://www.nad.org/publicschools (visited Sept 29, 2007).
101. See generally Malicia Hitch, Educational Interpreters: Certified or Uncertified?, 34 J L & Educ 161 (2005).
102. See, for example, Utah Code Ann §§ 53A-26a-301, 53A-26a-201 (Matthew Bender 2006) (requiring certification by the Interpreters Certification Board in order to provide interpretive services); Minn Stat Ann § 122A.31 (West 2000 & Supp 2007) (imposing certification and training requirements on interpreters).
103. Ironically, the Supreme Court recognized this point while under the stewardship of Chief Justice Rehnquist (who had written the majority opinion in Rowley) when it held in Cleveland v Policy Management Systems Corp, 526 US 795, 801 (1999), that "[t]he ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity."
104. For a critique of the ADA on the ground that it does not reach equality of opportunity in many contexts, see generally Michael Ashley Stein and Penelope J.S. Stein, Beyond Disability Civil Rights, 58 Hastings L J 1203 (2007).
105. Nussbaum's sentiment undoubtedly is otherwise. She begins (p 155) and ends (pp 222-23) Chapter 3 with a commitment to enabling all children to reach their full human potential, which she takes to be motivated by "our attachment to justice and our love of others, our sense that our lives are entwined with theirs, and that we share ends with them" (p 222). Here, however, attachment to justice and love of others appear to be distinct rather than merged motivations. Tracing a commitment to developing potential fully in all children to this elucidation of love of others seems unexceptional, but it is much harder to find the source of such a commitment in her account of distributive justice.
106. 527 US 581 (1999).
107. See Stein, 95 Cal L Rev at 102-04 (cited in note 31) (discussing notions of "participatory justice").
108. 527 US at 593.
109. See, for example, Linda Greenhouse, States Limited on Institutionalization, NY Times A16 (June 23, 1999) (reporting the decision as "a substantial victory for a disabilities rights movement that has looked to the Americans With Disabilities Act of 1990 as a tool for breaking down institutional walls that separate people with serious mental and physical problems from the larger community").
110. Olmstead, 527 US at 592, citing 28 CFR § 35.130(d) (1998).
111. For a stringent critique of the Rehnquist Court's use of economic "rationality" as a ground for determining civil rights, see Aviam Soifer, Disabling the ADA: Essences, Better Angles, and Unprincipled Neutrality Claims, 44 Wm & Mary L Rev 1285, 1295 (2003) (arguing that the Court "arrogated for itself untethered authority to engage in second-guessing of Congress").
112. Olmstead, 527 US at 597 ("In evaluating a State's fundamental-alteration defense, the District Court must consider . . . not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities.").
113. See, for example, Frederick L. v Department of Public Welfare of Pennsylvania, 364 F3d 487, 494-95 (3d Cir 2004) (considering budget constraints and other factors).
114. Consider, for example, the competing claims facing the court in Townsend v Quasim, 328 F3d 511, 520 (9th Cir 2003): Plaintiffs have asserted that it is cheaper on a per capita basis to provide long-term care services to individuals in a community-based setting rather than a nursing home. . . . At the same time, even if extension of community-based long term care services to the medically needy were to generate greater expenses for the state's Medicaid program, it is unclear whether these extra costs would, in fact, compel cutbacks in services to other Medicaid recipients.
115. For example, in Pennsylvania Protection & Advocacy, Inc v Dep't of Public Welfare of Pennsylvania, 243 F Supp 2d 184, 191 (MD Pa 2003), the court decried a "simple comparison between the cost of community placement and the cost of institutional confinement" as inaccurate because it would overlook unavoidable costs, such as the cost of keeping institutions open for residents in need of more care than community-based services could provide.
116. Nussbaum describes affiliation as "being able to live with and toward others" (p 77).
117. Nussbaum states that being able to have adequate shelter is a component of the capability for bodily health (p 76). See also Lankford v Sherman, 451 F3d 496, 509 (8th Cir 2006) ("Rather than focusing on an individual entitlement to medical services, the reasonable-standards provision focuses on the aggregate practices of the states in establishing reasonable Medicaid services."); Radaszewski v Maram, 383 F3d 599, 614 (7th Cir 2004) ("A court must therefore take care to consider the cost of a plaintiffs care not in isolation, but in the context of the care it must provide to all individuals with disabilities comparable to those of the plaintiff").
118. See John Gray, In Theory, The Nation 32 (June 5, 2006).
119. As Nussbaum perspicaciously points out, theory and practice are interdependent (p 223). Prevailing theories of justice are one of the influences on people's lives, but how society eventually views these cases will affect whether or not her capabilities approach replaces classical social contract theory.
120. For example, Rawlsian social contract theory has had a lot to say about the design of basic social institutions, while Nussbaum's version of the capabilities approach deserves further expansion in this direction. We thank Leslie Pickering Francis for the prompt that led to this observation.