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.
Jessica L Roberts, Progressive Genetic Ownership, Notre Dame Law Review volume 93:3 1105 (2018).