1107 Introduction 1112 I. Ownership Debates 1112 A. What Is Progressive Property ? 1112 1. Neoclassical Economic Theories of Property 1112 2. Progressive Property as an Alternative 1115 B. What Is Genetic Ownership? 1121 1. Genetic Ownership Controversies 1123 2. Genetic Ownership Entitlements 1128 a. Right to Exclude 1130 b. Right to Access 1131 c. Ri ght to Commercialize 1132 II. HEGEMONY OF NEOCLASSICAL LAW AND ECONOMICS IN GENETIC OWNERSHIP 1133 A. Genetic Comedies 1133 1. Research Incentives 1134 2. Participation Incentives 1135 B. Genetic Tragedies 1138 1. Anticommons 1138 2. Coll ective Actio n Problem 1140 3. Perverse Incentives 1141 III. FAILURE OF NEOCLASSICAL ECONOMIC THEORY FOR GENETIC OWNERSHIP 1145 A. Doctrinal Failures 1145 1. Informed Consent 1145 2. Growing Genetic Ownership Rights 1148 B. Intuitive Failures 1149 1. Personal Ownership 1150 2. Commodification Anxieties 1153 3. Declining Research Altruism 1155 IV. PROGRESSIVE GENETIC OWNERSHIP 1156 A. Progressive Model of Genetic Ownership 1156 1. Plural Genetic Values 1156 2. Genetic Communiti es 1160 3. Genetic Distributive Justice 1163 B. Applying the Model 1164 1. Right to Exclu 1164 2. Right to Access 1165 3 . Ri g ht to Comm ercialize 1166 CONCLUSION 1167 INTRODUCTION
Neoclassical law and economics has been a dominant lens in property law for decades. (1) This view is such an integral part of the property law canon that law students typically encounter it during their very first weeks of study when discussing the costs of fox hunting or the efficiency of whaling customs. (2) Yet recently, a new school of thought--progressive property--has disrupted these traditional theoretical underpinnings of American property law.
The progressive property movement challenges the dominance of neoclassical law and economics, urging us to consider the lived human experience, not just costs and benefits, when considering normative theories of property. (3) The familiar concepts of social welfare, rational actors, and cost-benefit analysis are such popular--and largely unquestioned--tools for understanding the legal system that they may well escape notice. (4) However, progressive property scholars maintain that these analytical tools, which comprise the core approach of neoclassical law and economics, fail to capture all the concerns at stake within ownership disputes. Specifically, progressive property theorists favor plural and incommensurable values over a singular account of welfare, acknowledge that human beings are not purely self-interested rational actors, and support distributive justice over simply maximizing net welfare. Importantly, progressive property does not outright reject promoting welfare, rational choice theory, or cost-benefit analysis. Rather, it situates those concerns within a greater conversation about the meaning and purpose of property.
Advocates have billed progressive property as a new school of thought. Yet if this movement truly represents the future of property theory, it must apply across a number of different contexts. While a handful of progressive property scholars have written about intellectual property, the principal focus of progressive property since its inception has been land use. This Article interrogates whether progressive property might apply in other domains. In so doing, it seeks to answer a novel and important question: whether progressive property is a theory of property writ large or whether it is exclusive to land use.
These debates matter. While seemingly abstract, property theories serve a variety of real-world functions. They justify the recognition of property rights and articulate their boundaries. (5) Property theories also explain how and why society distributes property interests among potential stakeholders. (6) In other words, theory informs the most foundational question of property law: who should own what. And finally, property theory legitimizes existing rights by explaining why allocating ownership interests in a particular way is appealing or fair. (7) Property theories are at once generative, descriptive, normative, and validating. Shifting how we think about property changes how we construe ownership and how we distribute its corresponding legal entidements.
Along with this debate in property law scholarship, a contemporaneous ownership debate has been raging within bioethics. People historically have not had meaningful ownership rights in their genetic data. (8) During a 2016 White House forum, President Barack Obama opined: "I would like to think that if somebody does a test on me or my genes, that that's mine, but that's not always how we define these issues." (9) He went on to tell participants in his Precision Medicine Initiative that the success of the program requires "understanding who owns the data." (10) But why?
We must resolve questions of genetic ownership because biospecimens and the DNA they contain are highly valuable both scientifically and commercially. (11) Much of modern medical science hinges on access to human tissue, (12) leading to the creation of extensive private, public, and nonprofit-run biobanks around the globe. (13) By some estimates, biobanks in the United States alone house over 500 million biospecimens, with that number increasing by twenty million every year. (14) Many Americans are familiar with the $43 billion per year biotech industry, much of which is built on enforcing exclusive patent rights. (15) However, recently the patent stranglehold that biotech has had on genetic information has weakened, as individuals are gaining what resemble de facto property interests in their DNA. People who contribute specimens for research are beginning to demand "biorights," including rights to compensation, access, and continuing control. (16)
For example, four patients, represented by the American Civil Liberties Union (ACLU), filed a complaint against the genetic testing company Myriad Genetics for denying them access to their genetic information. (17) They argue that Myriad violated the Health Insurance Portability and Accountability Act's (HIPAA) Privacy Rule, which creates a right to access the information contained within a person's health records. (18) The complainants underwent genetic testing with Myriad to assess their risks related to breast, ovarian, and other cancers. While Myriad provided them with a test report related to those risks, it refused to release the full set of their genetic results, maintaining that HIPAA only requires the company to release data that is "clinically actionable." (19)
What might not be apparent is that this latest controversy is, at bottom, a battle over genetic ownership. Myriad took a significant financial hit in 2013 when the Supreme Court invalidated its patents on isolated genes linked to breast and ovarian cancers. (20) Moreover, its corner on the genetic testing market will further decrease as many of its remaining patents expire. (21) With its patent monopoly in inescapable peril, Myriad's most valuable asset is now its extensive proprietary database of genetic information. (22) But whether Myriad can extract value from that database turns on how the law defines the ownership interests in the genetic information that the database contains. The way we understand genetic ownership and its underlying purpose will undoubtedly shape the outcome of this claim.
In addition to the most recent installment in the Myriad saga, courts have addressed the issue of property rights in genetic data head-on in two recent cases: Peerenboom v. Perlmutter and Cole v. Gene by Gene, Ltd. In Peer-enboom, Isaac and Laura Perlmutter sued Harold Peerenboom for conversion, among other things. They alleged that Peerenboom conspired to obtain their genetic material as part of a scheme to retaliate against the Perlmutters in a neighborhood dispute. (23) The Perlmutters asserted that they "have an exclusive right of possession and ownership of the genetic information encoded in their genetic material" and that "[b]y collecting, analyzing, and testing their genetic material to obtain the Perlmutters' confidential genetic information, Conspirators exercised an act of dominion and authority that deprived the Perlmutters of their rights of ownership, possession, control, and privacy." (24) Responding to a motion to dismiss from Peerenboom, the trial court found that the Perlmutters enjoyed a property right in their genetic information, sufficient to state a claim for conversion. (25)
Cole v. Gene by Gene, Ltd., set for trial in May 2018, deals with the release of genetic information in conjunction with direct-to-consumer genetic testing. Michael Cole purchased an at-home DNA ancestry kit, which gave consumers the opportunity to participate in "projects" run by third-party volunteers related to their results. (26) Cole signed up for nine such projects. (27) After receiving a large amount of spam, he searched the internet for his email address and found it on a website, thereby learning that his genetic test results had been made publicly available. (28) He sued the genetic testing company alleging a violation of Alaska's Genetic Privacy Act. (29) In denying the defendant's motion to dismiss for lack of standing, the trial court ruled that Cole had successfully shown an injury-in-fact under the Genetic Privacy Act, as the statute includes an exclusive property interest in genetic information, which relates to the common-law torts of conversion and invasion of property. (30) Like the Myriad complaint, Peerenboom and Cole demonstrate that conflicts about the property status of genetic data are alive and well.
This Article provides a case study for progressive property: the ownership of genetic data. The status of genetic ownership is in flux and interest in personal health data--both as a resource and as a commodity--is growing. New spheres of ownership are rare in property law. Virtually all of the world's territory is already spoken...