James Toomey

Property’s Boundaries

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary—a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property’s boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of the law. Ownership’s limits thus lie at the limits of absolute control—that which cannot in principle be the subject of human dominion cannot be owned. In short, this Article both offers a comprehensive explanation for why a conceptual theory of property’s limits matters and how one can be possible, and defends a substantive theory of the concept of ownership as control.

Under this theory, cells, organs, gametes, embryos, and corpses can be owned. But information—like genes and personal data—that cannot be controlled cannot be owned. Viewed through this lens, intellectual property—a challenge for any theory of property that appears to entail ownership in information—can be understood either as a statutory analogy or a rough approximation of the real but temporary control of information exercised by those who create or discover it.

Introduction

In October 2021, the estate of Henrietta Lacks sued Thermo Fisher Scientific.1 1.Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint].Show More The underlying facts are by now well-known.2 2.See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story).Show More On February 5, 1951, Ms. Lacks sought treatment for cervical cancer at Johns Hopkins Hospital.3 3.Lacks Complaint, supra note 1, at 2.Show More In the course of her treatment, physicians removed, without her consent, a portion of her tumor for research.4 4.Id.Show More The cells were found to have a stunning quality—they reproduced indefinitely outside the human body.5 5.Id. at 3.Show More For the first time, scientists could conduct research on mass-produced human cells.6 6.Id.Show More This cell-line, known as “HeLa” after its source, underwrote the biotechnology revolution and the immeasurable profits of companies—including Thermo Fisher—that have intellectual property in HeLa cells.7 7.Id. at 3–4.Show More But Ms. Lacks, who died shortly after the operation, never knew any of this, and her family has never legally owned any part of the HeLa cell line. This, the Lacks family’s complaint alleges, was “theft”—“this genetic material was stolen from Ms. Lacks.”8 8.Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible.Show More

The plaintiffs face an uphill battle convincing the court that Lacks’s doctors stole her cells. In the famous case Moore v. Regents of the University of California, the Supreme Court of California rejected a similar claim for conversion by a plaintiff whose spleen was used for research without his consent. The court observed the law “deal[s] with human biological materials as objects sui generis,” not subject to the “general law of personal property.”9 9.793 P.2d 479, 489 (Cal. 1990).Show More Human biological materials, the court suggested—organs, cells, gametes, and more—cannot be owned.10 10.Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)).Show More

But why? After all, many people (maybe most) feel that they own their cells and genetic material, and that Henrietta Lacks owned hers.11 11.See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership).Show More Others disagree.12 12.See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”).Show More Debates in the public sphere like this—about the boundaries of property law, about whether a kind of thing can be owned—are hardly limited to Henrietta Lacks and immortal cell lines. Indeed, we debate and litigate the ownership of organs,13 13.See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”).Show More tissue samples,14 14.See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”).Show More genetic information,15 15.See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”).Show More gametes and embryos,16 16.See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm).Show More corpses,17 17.See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010).Show More digital data,18 18.See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”).Show More and much more. These debates arise whenever value is discovered within—or technology makes it possible to capture value in—something new.19 19.See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”).Show More

Courts presented with these kinds of questions need a theory of property’s boundaries. But they would search largely in vain for one in contemporary property theory. Indeed, conventional legal wisdom has it that there are no conceptual answers to what can be owned.20 20.See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing).Show More Instead, the law of property is widely understood to be an arbitrary “bundle of sticks”—a collection of rights and responsibilities designed to achieve exogenous social goals, not a coherent concept with determinable boundaries.21 21.See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”).Show More From this perspective, the question of what can be owned is a normative one. It is necessarily coterminous with questions about what should be owned, who should own what, and how ownership ought to be regulated.22 22.Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”).Show More In our system of popular sovereignty and separation of powers, these questions are inappropriate for judicial resolution. If the conventional legal wisdom is correct, we would need to adopt by statute a code of property’s boundaries.23 23.See infra Section II.A.Show More

This Article, in contrast, argues that the concept of ownership—which exists outside the law and from which the common law of property derives its legitimacy—offers a descriptive, properly judicial theory of the boundaries of property law. Ownership is a relationship characterized by absolute control, and it cannot exist where a person could not in principle exercise absolute control over something.24 24.See infra Section III.A.Show More This means that ownership can properly apply to anything over which control can in principle be exercised, but not to those things that it cannot be.25 25.See infra Part IV.Show More

This distinction illuminates many public and legal controversies about ownership. On the one hand, because it can be subject to absolute control, human biological matter—from organs and corpses to cells and embryos—can be owned.26 26.See infra Section IV.A.Show More We control, and therefore own, our bodies and their constituents. On the other hand, information that is in principle accessible to anyone and cannot be manipulated cannot be owned.27 27.See infra Section IV.B.Show More This means that human genetic information and personal data are not ownable. In cases such as Lacks’s, the theory tells us that when Ms. Lacks walked into the clinic for treatment, she owned the cells of her tumor.28 28.See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”).Show More But that is of course not really what her claim of theft is about.29 29.At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong.Show More It’s the HeLa cell line—not Lacks’s cancer cells—from which the biotechnology companies have profited. HeLa is not metaphysically identical to Lacks’s cancer cells—what they share is genetic information.30 30.See generally Heng, supra note 12.Show More Because information, genetic or otherwise, cannot be owned, Lacks’s estate has never owned the HeLa line.

The theory of property’s boundaries offered in this Article is descriptive, not normative. It is a theory of the entailments of ownership as the concept actually exists outside the law, not a claim about whether the outcomes it suggests are good or bad, or whether we ought to have a common law of property organized around the concept of ownership in the first place. As such, the theory is entirely compatible with the possibility that people like Ms. Lacks have remedies in other areas of law—privacy, informed consent, or intentional torts, most prominently.31 31.Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990).Show More Indeed, it is also entirely legitimate for legislatures to codify structures analogous to ownership by statute (as discussed below, this is one way to understand intellectual property).32 32.See infra Section IV.C.Show More But this theory tells us the boundaries of the judge-made law of property—so long as judges ground their decisions on the concept of ownership, they might get it wrong, but they do not act illegitimately. And this matters because, for better or worse, courts are in fact regularly called upon to adjudicate whether something can be owned.33 33.See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created).Show More

This Article builds on growing scholarly criticism of the “bundle of sticks” model of property.34 34.See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same).Show More Indeed, although that model remains predominate,35 35.See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”).Show More the view of property law as essentially arbitrary and normative has come under sustained attack over the past several decades.36 36.See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”).Show More Moreover, some scholars have outlined conceptual theories of property’s boundaries analogous to this Article’s, although they offer different views of the concept’s substance.37 37.See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law).Show More Building within this intellectual movement, this Article offers a comprehensive explanation for why a conceptual theory of property’s boundaries matters and how it is possible.38 38.See infra Part II.Show More Further, it defends a substantive theory of the concept of ownership as control—and ownership’s boundaries at the boundaries of control—as opposed to the alternatives.39 39.See infra Part III.Show More

The argument proceeds in four Parts. In Part I, I canvass the development of contemporary property theory and illustrate the extent to which still-prevailing theories conflate theories about what can be owned with what should be, rendering questions about the boundaries of property fundamentally legislative.

In Part II, I lay the groundwork for a conceptual theory of property’s boundaries by explaining why such a theory matters and how it could be possible. In short, the extra-legal existence of concepts relied on by the common law legitimates common law law-making consistent with democratic theory, and the concept of ownership could exist metaphysically, psychologically, or socially.

In Part III, I outline a theory of property law as grounded in an extra-legal concept of ownership understood as absolute control. I argue that ownership—absolute control—is a determinate category. And I situate ownership as control in relation to other conceptual theories of property and show how it fares better at explaining the concept.

Finally, in Part IV, I apply this theory to some contemporary boundary challenges in property law, bioethics, and law and technology. I find that, under the theory, such things as organs, gametes, tissue samples, organisms, and corpses fall within property’s conceptual domain. In contrast, genetic information, gene sequences, information derived from tissue samples, and personal data cannot conceptually be subject to property law. Moreover, I apply the theory to the most challenging case recognized in positive law at the boundaries of ownership—intellectual property—and find that it fares plausibly, if roughly.

  1. Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint]. ↑
  2. See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story). ↑
  3. Lacks Complaint, supra note 1, at 2. ↑
  4. Id. ↑
  5. Id. at 3. ↑
  6. Id. ↑
  7. Id. at 3–4. ↑
  8. Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible. ↑
  9. 793 P.2d 479, 489 (Cal. 1990). ↑
  10. Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)). ↑
  11.  See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership). ↑
  12. See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”). ↑
  13. See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”). ↑
  14. See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”). ↑
  15. See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”). ↑
  16. See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm). ↑
  17. See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010). ↑
  18. See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”). ↑
  19. See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”). ↑
  20. See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing). ↑
  21. See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”). ↑
  22. Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”). ↑
  23. See infra Section II.A. ↑
  24. See infra Section III.A. ↑
  25. See infra Part IV. ↑
  26. See infra Section IV.A. ↑
  27. See infra Section IV.B. ↑
  28. See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”). ↑
  29. At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong. ↑
  30. See generally Heng, supra note 12. ↑
  31. Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990). ↑
  32. See infra Section IV.C. ↑
  33. See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created). ↑
  34. See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same). ↑
  35. See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”). ↑
  36.  See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”). ↑
  37. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law). ↑
  38. See infra Part II. ↑

  39. See infra Part III. ↑

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