San Diego Law Review
This Article argues against this conventional view. Most of the time there is nothing unfair about the brain drain, whether one considers it from the standpoint of the emigrant, the source country, or the host country. Critics of the brain drain make problematic empirical and philosophical claims. The empirical assumption of the critics, that the brain drain invariably hurts developing countries, is controversial. While a number of authorities endorse the conventional view that the brain drain hurts source countries, a contrarian literature suggests that the brain drain may help those left behind - that there is, in fact, a brain gain. Moreover, the philosophical claim that societies in some sense own individuals' natural talents ought to be rejected. This Article first examines the facts and summarizes various proposals that have been advanced to stem the brain drain. The evidence shows that (1) it is far from clear that the brain drain harms those left behind; (2) even if those left behind are harmed, that harm is far from devastating; and (3) because the brain drain allocates resources efficiently, it is likely to benefit many people globally, especially the world's poor. For the sake of argument, this Article then concedes that the source country is harmed in some relevant sense, and asks whether this harm is unjust. After examining at some length the concept of self-ownership, this Article endorses the concept and discusses its relevance to the brain drain. Even assuming that those left behind are harmed in some sense by talented citizens who leave, the state has no claim over the skilled individual who emigrates because he has pre-political ownership of his talents. This Article then examines the argument that the talented citizen has a duty of reciprocity to the citizen's home country, and finds it wanting. Finally, the Article rejects the twin views that emigrants, in most cases, act wrongly when they leave, and that host countries act wrongly when they attract skilled immigrants. The upshot is that if the brain drain harms others, it is not an unfair harm.
Fernando R. Teson,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss4/4