Progressive Genetic Ownership

Jessica L. Roberts*

Recently, property law scholars have challenged neoclassical economic theory as the primary lens for understanding ownership. As an alternative to the all-too-familiar concepts of welfarism, rational choice theory, and cost-benefit analysis, they offer “progressive property,” a school of thought grounded in value pluralism, communitarianism, and redistribution. To date, much of the progressive property literature has focused exclusively on land use. This Article tests the versatility of this new property school by applying it to a novel context: genetic ownership. As with real property, discussions surrounding genetic ownership have been entrenched in the language of neoclassical economics. Given the proliferation of deontological concerns related to genetic research—such as privacy, identity, autonomy, and social justice—neoclassical economic theory is woefully incomplete as a theory of genetic ownership. Progressive property promises a more complete approach. Yet this conclusion does not establish progressive property as universally appropriate. Certain unexpected similarities exist between land and genetic data. Thus, while progressive property is well-suited to situations dealing with unique objects of ownership that raise deontological and distributive concerns, it should not necessarily supplant neoclassical law and economics for resolving all legal disputes regarding the ownership.

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© 2018 Jessica L. Roberts. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*George Butler Research Professor and Director of the Health Law & Policy Institute, University of Houston Law Center. Greenwall Faculty Scholar. My thanks to Gregory S. Alexander, Emily Berman, Zachary Bray, Seth Chandler, Stephen Clowney, I. Glenn Cohen, Jim Hawkins, David Fagundes, David Kwok, Sapna Kumar, Amy McGuire, Tim Mulvaney, James Nelson, Tom Oldham, Ruth Okediji, Eduardo M. Pe˜ nalver, D. Theodore Rave, Barak Richman, Rachel Sachs, Joseph Sanders, Greg R. Vetter, Kellen Zale, and to the participants of the 2015 Petrie-Flom/Harvard Health Law, Bioethics, and Biotechnology Workshop, the 2015 Texas Legal Scholars Workshop, the 2015–2016 South Texas Faculty Enrichment Series, the 2015–2016 University of Houston Works-in-Progress Series, the 2016 Association for Property, Law, and Society Meeting, the 2016–2017 Marquette University Law School Workshop Series, and the 2017 Junior Faculty Forum for Law and STEM, especially Rebecca S. Eisenberg and Shyamkrishna Balganesh, as well as to my editors at the Notre Dame Law Review. As always, my deep appreciation goes to Emily Lawson for library support and Elaine Fiala for administrative aid. Anjay Batra, Leah Buenik, and Amelia Khoei provided outstanding research assistance. This research was made possible by a generous grant from the Greenwall Foundation.