Producing new pharmaceutical products – and then verifying their effectiveness and safety – is both expensive and risky. Substantial financial incentives are essential to induce firms to engage in this activity. The current patent system provides those incentives by empowering the firms that develop novel and nonobvious pharmaceutical products to prevent others from making, using, selling, or importing those products. Armed with that authority, the firms are able to sell the products for prices much higher than the costs of manufacturing them. The resultant profits provide the carrots necessary to prompt the firms to engage in the inventive activity in the first instance.

A prize system would work quite differently. Instead of authorizing drug developers to exclude competitors, the government would pay successful developers. Other firms, including generic drug manufacturers, would be free to make and sell the drugs in question. The resultant competition would keep drug prices close to the modest costs of manufacturing them. The money necessary to run such a system would come, not from consumers (or their insurers), but from taxpayers.

Would a prize system of this general sort be better than the patent system? More to the point, would it be more effective in alleviating the health crisis in the developing world? A substantial body of literature addresses those questions. In this paper, we marshal and critically evaluate that literature – and add to it a number of new arguments of our own.

The discussion is organized as follows. In Part I, we explore the major potential strengths and weaknesses of prize systems. In Part II, we consider how a prize system focused on the production of drugs and vaccines aimed at communicable diseases might be designed so as to capitalize on its strengths and mitigate its weaknesses.

The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities.

Our analysis gives rise to an ethical problem: most of the legal reforms we consider would increase the already significant extent to which the cost of developing new drugs — including some whose principal function is to alleviate suffering in the developing world — is borne by the residents of the developed world, either as consumers purchasing patent-protected drugs or as taxpayers. Why should the law be organized in this fashion The goal of this Article is to answer that question.

The analysis proceeds in two stages. In Part I, we consider several possible reasons why developed country residents should help alleviate the health crisis in the developing world. We begin by canvassing, briefly, considerations from national self-interest. Finding these implausible and unattractive, we then consider several arguments grounded in considerations of justice, or in sentiments of mutual concern and well-wishing, that extend beyond national borders. These include arguments from historical equity, social utility, and deontological and teleological theories of distributive justice. We show that each of these frameworks or perspectives provides support for our proposals. Further, we contend that, not only do the arguments individually support our goals, but, suitably qualified, each tends to reinforce, or at least converge or “overlap” with, the others.

In the course of our analysis in Part I, we address several criticisms that have been or might be made of particular arguments we offer in support of our proposals. In Part II, we confront the following more sweeping objections to our approach: that full acceptance of the commitments we identify would impose intolerable moral burdens on the citizens of developed countries; that questions of distributive justice are properly limited to the level of individual polities; that recognition of the insights of communitarianism requires privileging the claims of the nation over the claims of the globe; that adoption of our proposals would disrupt the operation of the patent system and prevent us from achieving the important objectives it serves; and that interference with the free market in pharmaceutical products is either illegitimate or likely to do more harm than good. We contend that none of the objections, closely examined, holds up.

Public concern cases involving professors tend to arise in one of four different contexts: faculty expression concerning the internal affairs of the institution; faculty expression motivated by personal interest; faculty expression made in private and not shared with the public; and vulgar or derogatory language employed by faculty in the classroom. In this article I will argue that, in each of the four contexts, courts have not always been sensitive to the special differences between ordinary public employment and employment at an institution of higher education. Also, in all four contexts, it is clear that the matter of public concern test does not encompass the traditional notions of protection offered by academic freedom.

To explain the trends in public concern jurisprudence, it is helpful to review the history of constitutional protection for public employee free expression. Part II of this article will review the rise of First Amendment protection for academic freedom, the development of the public concern test, and academic standards for free expression. Part III will describe the current procedural hurdles that plaintiffs and defendants must maneuver when a professor's free speech rights are being litigated. Part IV contains an analysis of public concern cases in terms of the four categories listed above. Finally, Part V presents academic criticism of the matter of public concern test and alternative legal standards for determining the First Amendment value of professors' expression.

Professors must exercise caution when relying on the First Amendment or academic freedom to shield their expression from retaliation because the only academic speech likely to enjoy protection under the Constitution is speech on matters of public concern. The matter of public concern test does not encompass the traditional notions of protection offered by academic freedom. And, even if a professor is successful in showing that the speech in question pertains to a matter of public concern, the professor's case must still survive Pickering balancing, qualified immunity challenges, and other procedural hurdles. Courts applying the matter of public concern test to faculty speech sometimes are insensitive to the special context of higher education. As a result, professors must consider that important expression in the academic environment may appear as inconsequential to a judge. This insensitivity and difference in worldviews results in less protection for free speech, and as a result, it endangers academic freedom.

Cases applying the matter of public concern test to faculty speech are highly fact-sensitive. But some generalizations can be made about public concern cases to help faculty evaluate their free speech rights:

(1) Many important internal affairs issues are not matters of public concern. To be protected, expression on internal affairs issues must directly affect the public's perception of quality of education. As a result, faculty speech on many important, quality-affecting issues is not protected by the First Amendment.

(2) Faculty expression that is motivated by purely personal interest will not enjoy First Amendment protection. Courts will also reject First Amendment claims by faculty who use public issues as a pretense to air their personal grievances. However, faculty who have mixed motives of personal and sincere public interest may have their speech protected.

(3) Professors do not have to publicize their expression in order to enjoy First Amendment protection. Private expression on matters of public concern is protected by the First Amendment.

(4) Professors who use vulgar or derogatory language should exercise caution because an institution or court might not consider the context or speaker's intent carefully. As a result, professors cannot rely on First Amendment protection for vulgar or derogatory speech. Sexually-explicit expression that is motivated by pedagogical purposes has, however, been found to relate to a matter of public concern.