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Friday, June 29, 2007

Was Shelley v. Kraemer Incorrectly Decided? Some New Answers

photo of Mark D. RosenMark D. Rosen of Chicago-Kent College of Law recently published an article titled Was Shelley v. Kraemer Incorrectly Decided? Some New Answers, 95 Cal. L. Rev. 451 (2007), which won the 2006 Outstanding Scholarly Paper Award from the Association of American Law Schools. Professor Rosen is a Norman & Edna Freehling Scholar and respected constitutional scholar who has testified to Congress on constitutional issues.

In his article, Professor Rosen explores the famous case of Shelley v. Kraemer and offers an alternative rationale for the holding. His arguments are radical and credible, and the advantages that flow from adopting his suggestions are significant.

I. A brief history of Shelley v. Kraemer


In Shelley v. Kraemer, 334 U.S. 1 (1948), the Shelleys purchased a home through a deed that had a restrictive covenant. A restrictive covenant is a private agreement among property owners that live near each other to restrict certain uses of their land. Like a zoning law, it prevents the owners from doing everything that they want with their land, but unlike a zoning law, which is a public law, a restrictive covenant is a private agreement--a contract that "runs with the land" and is enforced as a property right. The restrictive covenant on the property that the Shelleys purchased stated that the property could only be occupied by persons of the "Caucasian race." Kraemer, a neighbor, sued in state court to prevent the Shelleys, who were African-American, from occupying the home and to force them to return title to the previous owners. The Supreme Court held that enforcement of the racially restrictive covenant was unconstitutionally discriminatory. The holding itself is consistent with the development of American law--courts and legislatures have increasingly limited the effects of invidious discrimination. The reasoning, however, is the black sheep of anti-discrimination law. A unanimous Court reasoned that if the state court enforced the racially restrictive covenant, then the enforcement would be "state action" in violation of the Equal Protection clause of the Fourteenth Amendment. The Fourteenth Amendment only applies to state action ("nor shall any State deprive person of . . . property, without due process of law." (emphasis added)), and to decide the case under the Fourteenth Amendment, it was necessary for the Court to find some kind of state action related to the racially restrictive covenant. The case is unusual because it is extremely rare that a court considers the enforcement of a private agreement to be state action. Furthermore, by basing the case on the Fourteenth Amendment, the Court held that making a racially restrictive covenant is legal even though enforcing it is unconstitutional. ("We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment.") This holding is odd because courts generally enforce legal contract provisions.

As Professor Rosen points out, this decision has caused considerable headaches for courts, academics, and students. He surveys prior attempts by academics to fit the reasoning of Shelley into the American legal structure, but concludes that none of them have been widely accepted by the legal community. Some commentators have tried to reconcile Shelley by arguing that since the state plays a significant role in nearly all private action, that the distinction between public action (e.g., judicial enforcement) and private action (e.g., the creation of an agreement) is so minor as to be unimportant. These academics argue that the Fourteenth Amendment's state-action requirement is illusory because public and private actions are inseparabale. Another attempt to explain Shelley's reasoning argued that the state had delegated the zoning power to private parties; therefore, the racially restrictive covenant was state action. A third attempt suggested that courts should balance the rights of the parties involved. If the liberty and property interests of the discriminating party, for example, outweigh the equal protection rights of the party discriminated against, then courts should not find state action. Finally, many courts have simply limited Shelley to discrimination, or even to only race discrimination.

For each of these prior approaches, Professor Rosen has some praise and some cogent criticisms. He argues, however, that it is not necessary for the legal community to completely disagree with these approaches, and instead argues that courts should adopt his approach because it is superior to the alternatives--including the reasoning in Shelley itself. His approach has two components--both are creative, unique, and bold. First, he suggests an alternate rationale for Shelley's holding based on the Thirteenth Amendment instead of the Fourteenth Amendment. Second, and even more boldly, he suggests that the legal community completely discard the Fourteenth Amendment reasoning in Shelley.

II. The Thirteenth Amendment as an alternative rationale for Shelley


Professor Rosen convincingly argues that the holding in Shelley can be based on the Thirteenth Amendment. Section One of the Thirteenth Amendment states that "[n]either slavery nor involuntary servitude . . . shall exist within the United States." Professor Rosen points out that using Section One as the rationale for Shelley is foreclosed because the Civil Rights Cases, 109 U.S. 3 (1883), narrowed Section One to abolishing slavery, and that it does not prevent private actors from discriminating based on race. Section Two of the Thirteenth Amendment states that "Congress shall have power to enforce this article by appropriate legislation." The Court stated in the Civil Rights Cases that Congress may use its Section Two powers to outlaw the "badges" and "incidents" of slavery, including some types of invidious discrimination by private actors. Professor Rosen therefore argues that Congress has the power to pass a law that would render the racially restrictive covenant in Shelley illegal.

Professor Rosen suggests not one, but two, different laws grounded in Section Two that could apply to the facts in Shelley. The property aspects of the case are addressed by a predecessor to 42 U.S.C. section 1982, which stated, at the time of Shelley, that "all persons born in the United States and not subject to any foreign power . . . shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to . . .purchase . . . real and personal property." Professor Rosen argues that the Court could have applied this law in Shelley and reached the same holding. The racially restrictive covenant was an attempt to prevent non-white citizens from purchasing real property and that clearly violates this statute.

The contract aspect is addressed by 42 U.S.C. section 1981, which states that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." The Court could have applied this law in Shelley and reached the same holding because the racially restrictive covenant prevented non-whites from making a contract for the sale of the real property and that also clearly violates this statute. Applying either of these statutes to the facts in Shelley has the added advantage of holding the racially restrictive covenant illegal, whereas the Fourteenth Amendment rationale does not.

The biggest hurdle to using these statutes as an alternative rationale for Shelley is that the Shelley Court was aware of both of them but chose not to use the statutes. Professor Rosen makes a number of arguments that establish that the necessary legal interpretations of those statutes were not readily available when Shelley was decided in 1948. Section 1982, for example, was thought by the Court to have been enacted under Congress's Fourteenth Amendment Section Five powers, but later cases established that it actually was enacted using Congress's Thirteenth Amendment Section Two powers. The article easily clears this hurdle and Professor Rosen's argument that Shelley can be understood as a Thirteenth Amendment case is persuasive.

III. Interpreting Shelley's "attribution rationale"


Professor Rosen not only shows that a Thirteenth Amendment rationale is consistent with American jurisprudence, he also argues that the Fourteenth Amendment reasoning is so inconsistent with the rest of American case law that it should be discarded. He starts by defining the Fourteenth Amendment holding from Shelley.

The Shelley Court attributed enforcement of a racially restrictive covenant to the state in the following passage (Shelley at 21 (footnotes omitted)):
The Fourteenth Amendment declares, "that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." Strauder v. West Virginia, supra, 100 U.S. at 307. Only recently this Court has had occasion to declare that a state law which denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry, was not a legitimate exercise of the state's police power but violated the guaranty of the equal protection of the laws. Oyama v. California, 1948, 332 U.S. 633. Nor may the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power. Cf. Buchanan v. Warley, supra.


To make it easier to parse the text, I will use this paraphrase:

  1. Strauder holding: the Fourteenth Amendment prevents discrimination by the law because of color (or race).

  2. Oyama holding: a state law that discriminates on race (or color) is not a legitimate use of the police power.

  3. Buchanan comparison: Nor is discrimination by a state court a legitimate use of the police power.



Professor Rosen dubs this reasoning the "attribution rationale" and offers two definitions.
  1. "[C]ourts [can] only enforce contractual provisions that could have been enacted into general law."

  2. "Because the state could not have enacted the provision at issue in Shelley, it followed that court enforcement of the restrictive covenant also violated the guarantee of equal protection."



Using the paraphrase above, Professor Rosen's definition of the attribution rationale is "situations such as the Oyama holding inevitably lead to the Buchanan comparison." Said differently, #3 must follow from #2. (The "must interpretation.")

Although Professor Rosen does not precisely explain how he arrived at these definitions, his interpretation is a fair reading of Shelley, and there are logical reasons to interpret it this way. First, the Court used parallel language to describe both the Oyama holding and the Buchanan comparison. This implies a close relationship between the two concepts. Therefore, it is a fair assumption that the Court intended #3 always to follow from #2. Second, in the text, the Buchanan comparison literally does follow the Oyama holding, which implies the "must interpretation."

Lastly, the most important statement in the quote is: "Nor may the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power." and this is supported by the comparison citation to Buchanan. The Buchanan case held that a segregation law, which had the effect of prohibiting the sale of specific property to African Americans, was not a valid exercise of the state's police power. It is fair to assume that the Court meant that anytime the reasoning in Buchanan would invalidate a law, Shelley would invalidate an equivalent contract provision.

IV. Proof by contradiction


To prove that Shelley's attribution rationale is invalid and should be discarded by the courts, Professor Rosen advances his argument with a proof by contradiction. Also called reductio ad absurdum, this type of argument disproves a premise by showing that the premise inevitably leads to an absurd, impossible, invalid, or contradictory result.

I should caution that Professor Rosen never calls his argument a proof by contradiction or a reductio ad absurdum. Certainly, lawyers use proofs by contradiction all the time, yet lawyers rarely call it that. The phrase "proof by contradiction" only appears 28 times in "All Law Reviews, Texts & Bar Journals (TP-ALL)" from Westlaw's database, and most of those articles deal with economic arguments. A search on all federal and state cases (ALLCASES) yields 202 results, but a closer look at those cases makes it clear that the courts in those cases were talking about contradictory proof--evidence--and not a type of legal argument. The legal community has a natural affinity for Latin phrases, and that might explain why "reductio ad absurdum" is found more frequently in the database. A search on all articles yields 978 results, and it appears 981 times in all cases. Two thousand references out of the millions of articles and cases in the Westlaw database suggests that typical lawyers don't use this phrase. The slippery slope argument is the little brother of proof by contradiction, and lawyers make slippery slope arguments all the time. It is odd that the legal community has not incorporated the efficiency and simplicity that comes with explicitly using a proof by contradiction. Nevertheless, Professor Rosen expertly employs a reductio ad absurdum argument, even if he doesn't call it by that name.

One should also note that as a type of logical argument, a proof by contradiction might use syllogisms, but it doesn't necessarily have to follow any syllogistic format.

With this type of proof, the ultimate conclusion is shown to be absurd because it contradicts something that is known to be true. It is acceptable to work through a series of logically true statements (called inferences) that ultimately lead to an inconsistent result. This example is from the Internet Encyclopedia of Philosophy:
  1. Major premise: If A is true then B is true.

  2. Minor premise: A is true.

  3. Conclusion: Therefore, B is true.


Contradictory fact: B is false.

The conclusion is contradicted by the fact, so the major premise must be false. I use the term "premise" a little loosely; technically, a premise is a claim, but it might not be true. For the purposes of proof by contradiction, however, the minor premise is true or assumed to be true. This is necessary in a proof by contradiction. Because the major premise is the only part of the proof by contradiction that is not assumed to be true, when the proof leads to an absurd result, the only logical conclusion is that the major premise is false. If there were multiple premises in the proof, then the absurd result would call all of the premises into question. This is undesirable and similar to scientific experiments that have more than one independent variable--it is impossible to attribute the results to only one of the variables. Scientists avoid this problem by having only one variable in their experiments. Said differently, the scientists "hold constant" all the variables but one. Similarly, lawyers should have only one major premise in their proof by contradiction that is not known to be true.

V. Applying a proof by contradiction to Shelley's attribution rationale strongly suggests that the Fourteenth Amendment reasoning should be discarded


In his article, Professor Rosen summarizes his argument to discard the Fourteenth Amendment rationale as (Rosen, at 501-02 (footnotes omitted)):
[T]he virtually uniform rejection of Shelley's Fourteenth Amendment approach . . . is evidence that the Shelley Court's rationale . . . does not accurately explain its holding. Recall that Shelley demanded state action, found it in the judicial enforcement of a private covenant, and made the state responsible for the covenant's substantive content by means of the Court's attribution rationale. If later courts had followed the attribution rationale, then judicial enforcement of contracts limiting speech would have triggered constitutional review, as would testamentary wills that condition inheritance on a child's marriage to a person of a specified religious faith. But . . . these outcomes have not materialized.

This Article's Thirteenth Amendment approach far better explains the post-Shelley case law.


Even though Professor Rosen does not refer to his argument as a reductio ad absurdum, I believe that this is a masterful application of a proof by contradiction. Recasting his argument as a proof by contradiction using the example where courts do enforce contracts limiting speech looks likes this:
  1. Major premise from Shelley: a provision that would be unconstitutional as a law is unenforceable as a contract provision.

  2. Minor premise: Provision X, a provision in a law limiting First Amendment free speech rights, would be unconstitutional.

  3. Conclusion: Therefore, if Provision X is a provision in a contract, it is unenforceable by the courts.


Contradictory fact: Courts, however, do enforce contractual provisions limiting speech that would be unconstitutional if enacted as a law. This example comes from United Egg Producers v. Standard Brands, 44 F.3d 940 (11th Cir. 1995) (holding that a settlement agreement between two companies where the parties agreed not to create advertisements that "disparage the other party's product" is a restriction of "their First Amendment rights on commercial speech," specifically refusing to apply Shelley, and further holding that judicial enforcement of the settlement agreement was not state action). The fact that courts enforce these contacts directly contradicts the conclusion; therefore, the major premise must be false.

The example using wills looks as follows:
  1. Major premise from Shelley: a provision that would be unconstitutional as a law is unenforceable as a contract provision.

  2. Minor premise: Provision X, a provision in a law that conditions inheritance by an heir on that heir marrying someone of a particular faith would violate the Establishment Clause of the Constitution.

  3. Conclusion: Therefore, if Provision X is a provision in a contract, it is unenforceable by the courts.


Contradictory fact: Courts, however, do enforce provisions in wills like this even though it would be unconstitutional if enacted as a law. This example is based on two cases, Shapira v. Union Nat'l Bank, 315 N.E.2d 825, 827-28 (Ohio Ct. Com. Pl. 1974) (finding that the testator conditioned inheritance on the heir marrying a "Jewish girl," holding that it is "clear" that the heir's "right to marry is constitutionally protected from restrictive state legislative action," and holding that Shelley did not apply because the court was not asked to enjoin a marriage) and Gordon v. Gordon, 124 N.E.2d 228, 235 (Sup. Jud. Ct. Mass. 1955) (holding that a will conditioning inheritance on the heir marrying someone "born in the Hebrew faith" was not a violation of the First or Fourteenth Amendments because the will did not condition the inheritance on anyone's religious belief, implying that the Amendments might apply if the will did condition the inheritance on someone's faith, and holding that the district court can enforce the provisions of the will). Again, the fact contradicts the conclusion; therefore, the major premise must be false.

Professor Rosen uses these and other examples to show that the Fourteenth Amendment attribution rationale has been rejected by the courts. Since courts have rejected the reasoning, he argues that the legal community should discard it as the basis for the holding in Shelley, and adopt the Thirteenth Amendment rationale.

VI. Advantages to adopting the Thirteenth Amendment reasoning and discarding the Fourteenth Amendment attribution rationale


Besides his two major logical arguments, Professor Rosen makes seven normative arguments in favor of adopting the Thirteenth Amendment reasoning and discarding the Fourteenth Amendment attribution rationale.
  1. The Thirteenth Amendment reasoning is more compelling.

  2. Discarding the attribution rationale relieves stress on the distinction between public action and private action.

  3. The article distinguishes #2 from "state action doctrine" and points out that discarding the Fourteenth Amendment reasoning will make it easier to formulate a clear state action doctrine.

  4. The Thirteenth Amendment reasoning would make racially restrictive covenants illegal--not just unenforceable.

  5. As shown with the proof by contradiction, rejecting the Fourteenth Amendment attribution rationale is more consistent with existing case law.

  6. Adopting the Thirteenth Amendment reasoning would give new life to the amendment.

  7. Grounding the case in Congress's Thirteenth Amendment Section Two powers instead of Fourteenth Amendment constitutional prohibitions means that Congress and the President become more involved in shaping this area of law. The increased involvement of these two institutions brings the advantages of the different institutional competences to the table (such as increased fact-finding abilities), which would have a positive effect on the development of anti-discrimination law.


VII. The "might interpretation": a different interpretation of Shelley's attribution rationale


Professor Rosen's proof by contradiction of Shelley's attribution rationale is a strong argument for discarding the Fourteenth Amendment reasoning of the case. It relies on the "must interpretation" from Part III, above: if a contractual provision could not be enacted as a law, then it inevitably follows that courts cannot enforce the contractual provision. As shown in Part III, there are three reasons why the "must interpretation" is a reasonable reading of Shelley. It is also reasonable, however, to interpret the text to mean: if a contractual provision could not be enacted as a law, then it might follow that courts cannot enforce the contractual provision. (The "might interpretation.")

First, the American legal system avoids using absolutes. At best, American law is full of exceptions; at worst, American law is languidly equivocal. Even a law as clear and obvious as "do not intentionally kill" has a long list of exceptions and mitigations. It is rare that legal statements are as strong as "If X, then Y inevitably follows." Although the Shelley text uses parallel language to describe both the Oyama holding and the Buchanan comparison, the Court does not explicitly say whether it must follow or if it might follow. Said differently, the Court did not explicitly define the relationship between the two statements. Because American law avoids absolutes, it might be difficult to read Shelley as stating the "must interpretation." This factor suggests that the "might interpretation" is more likely.

Second, the order of the statements does not inevitably lead to the "must interpretation." The Court discussed the Oyama holding and then discussed the Buchanan comparison, and it is tempting to infer from the order of presentation that #1 inevitably leads to #2. Logically, this is not necessarily true. Rain usually precedes lightning, but rain does not inevitably lead to lightning. (Furthermore, lightning can sometimes happen without rain.) Similarly, the order of presentation does not necessarily mean that the "must interpretation" is the only interpretation of the text. This factor also suggests that the "might interpretation" is probable.

Third, the presumption that the Court chooses its words carefully suggests adoption of the "might interpretation." When construing statutes and interpreting prior opinions, the Supreme Court presumes the drafters chose their words carefully. Think of Chisom v. Roemer, 501 U.S. 380 (1991), and the close reading that the majority inflicts on the Voting Rights Act. Then think of Justice Scalia's dissenting opinion with an equally close reading where he practically throws Webster's Second New International Dictionary across the chambers. Decisions can turn on the meaning of one word as shown by the epic battle of the dictionaries in Muscarello v. U.S., 524 U.S. 125 (1998).

Even introductory signals for citations can influence how the Supreme Court decides a case. According to The Bluebook: A Uniform System of Citations, "[s]ignals organize authorities and show how those authorities support or relate to a proposition given in the text." (The Bluebook is not available online, but Wikipedia explains the concepts reasonably well.) When a citation is introduced without a signal, then the authority "directly states the proposition." The citation signal "see" is used when the "authority clearly supports the proposition . . . [and] the proposition is not directly stated by the cited authority but obviously follows from it; there is an inferential step between the authority cited and the proposition it supports." (Emphasis added.) The signal "cf." (Latin for "compare") means the "[c]ited authority supports a proposition different from the main proposition but sufficiently analogous to lend support." (Emphasis added.)

The Supreme Court obviously takes these different signals seriously. In Lambrix v. Singletary, 520 U.S. 518 (1997), the Supreme Court had to decide if the rule announced in Espinoza v. Florida, 505 U.S. 1079 (1992), was dictated by the holding in Baldwin v. Alabama, 472 U.S. 372 (1985), or if Espinoza announced a "new rule." Writing for the majority, Justice Scalia considered the introductory signal used by the Espinosa Court an important part of the meaning (Lambrix at 528-29 (footnote omitted)):
In our view, Espinosa was not dictated by precedent, but announced a new rule. . . . It is significant that Espinosa itself did not purport to rely upon any controlling precedent. The opinion cited only a single case, Baldwin v. Alabama, 472 U.S. 372, 382 (1985), in support of its central conclusion. . . . Espinosa, 505 U.S., at 1082. And it introduced that lone citation with a "cf."--an introductory signal which shows authority that supports the point in dictum or by analogy, not one that "controls" or "dictates" the result.


By using the cf. signal, the Espinosa Court was saying that the holding in Espinosa was not dictated by the reasoning in Baldwin. Scalia's implication is that if the Espinosa Court had used a stronger signal, such as "see," then the holding in Espinosa may have been dictated by the reasoning in Baldwin. Consider that the "see" signal means that the stated proposition "obviously flows from" the reasoning in the authority. If the Espinosa Court had cited to Baldwin with a "see" signal then the Court would have been saying that the holding in Espinosa obviously flows from the reasoning in Baldwin.

Like the Lambrix, Chisom, and Muscarello Courts, the Shelley Court closely read prior case law to support its reasoning. To explain its holding that actions by state courts are certainly "state action" under the Fourteenth Amendment, for example, the Court painstakingly examined the language of dozens of prior cases. When parsing the Civil Rights Cases specifically, the Court stated, "Language to like effect is employed no less than eighteen times during the course of that opinion." In other words, to support its reading of the Civil Rights Cases, the Court counted how many times a particular phrase was used. Just as the Shelley Court closely read prior cases, the Court would probably expect the Shelley opinion to be read closely, and the Court therefore likely chose its words--and signals--carefully.

In Part III, above, the Buchanan comparison was interpreted as supporting the "must interpretation." Based on the signals, however, there might be a better interpretation. Shelley stated: "Nor may the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power. Cf. Buchanan v. Warley, supra." Applying the reasoning in Lambrix, and the definitions from The Bluebook, the only conclusion is that the holding in Shelley does not inevitably flow from the reasoning in Buchanan. Said differently, Buchanan might sometimes lead to Shelley, but it is not inevitable. If the Shelley Court wanted to say that the Buchanan reasoning inevitably lead to the Shelley holding, then it would have used the "see" signal--not the weaker cf. signal.

To turn an old legal phrase around, the logic in Buchanan is sufficient to support the holding in Shelley, but it does not necessarily require the holding in Shelley.

These three reasons mean that it is fair to read Shelley as stating the "might interpretation." Specifically, the attribution rationale says that if a contractual provision could not be enacted as a law, then it might follow that courts cannot enforce the contractual provision.

If one adopts the "might interpretation," then the proof by contradiction doesn't work. Using the free speech example, the proof would look like this:
  1. Major premise from Shelley: a provision that would be unconstitutional as a law might be unenforceable as a contract provision.

  2. Minor premise: Provision X, a provision in a law limiting First Amendment free speech rights, would be unconstitutional.

  3. Conclusion: Therefore, a contractual provision with the same limitation might be unenforceable by the courts.


Fact: Courts do enforce contractual provisions limiting speech that would be unconstitutional if enacted as a law.

In this case, the fact does not contradict the conclusion; therefore, the major premise might be true. Notably, it also does not prove that the major premise is true.

Professor Rosen's proof by contradiction requires the "must interpretation" of Shelley's attribution rationale. If one adopts the "might interpretation," however, the proof by contradiction does not prove or disprove Shelley's attribution rationale.

Conclusion and coda


Professor Rosen makes a compelling argument for adopting a Thirteenth Amendment reasoning for Shelley especially because there are a number of advantages by doing so. Furthermore, he makes a strong argument using a proof by contradiction that the legal community should discard the Fourteenth Amendment rationale. Even if one adopts the "might interpretation" above, Professor Rosen makes many compelling normative arguments in favor of discarding the Fourteenth Amendment rationale. His suggestions are compelling and the legal community should carefully consider them.

Finally, if the above is not enough to entice you to read his article, Professor Rosen has an extra bonus that certainly makes it worth your time. He introduces a concept he calls "constitutional preemption" where he translates the specifics of the dormant Commerce Clause doctrine into a general legal principle. It is a fascinating and persuasive concept, and one hopes that he will expound on it in a future article.

My thanks go to Professor Henry H. Perritt, Jr., Professor Rosen, and Professor Carolyn Shapiro for their help.

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Tuesday, June 5, 2007

Who Owns Your Body?

On Monday, May 21, 2007, the Institute for Science, Law & Technology, at the Illinois Institute of Technology held a conference titled Who Owns Your Body? Legal and Social Issues in Michael Crichton's NEXT. Lori Andrews, the Director of the Institute and a Distinguished Professor of Law at Chicago-Kent College of Law, convened the conference to discuss issues such as gene patents, selling body parts, and the intersection between commercial products and scientific research.

Michael Crichton has written a number of scientific thrillers like Jurassic Park and The Andromeda Strain, and he told the conference about the technical reviews his latest novel has received. Next looks at the rapidly developing world of genetics and other medical technology, and while it is grounded in the latest research, Crichton told the audience that the technical reviewers of his book seemed to be unaware of the recent developments in the medical field. He speculates that biology is changing too rapidly for even the biologists to keep up with everything. The materials for the conference include the "Author's Note" from Next, and in the Note, Crichton makes a strong argument that patenting genes is harmful. One of the examples he cites is that research on SARS was impeded because after three different patents were filed on the virus's genome, researchers were worried about infringing the potential patent. The implication that arose from the combination of his book excerpt and his talk was that the pace of change in biology is good because it means that we are developing exciting new technologies and therapies, but gene patents are damaging because they slow down the pace of change without any benefit to the public.

The first panel was billed "Disputes Over Body Tissue" and the panelists also talked about patenting genes and using the genetic information of others for personal gain. The conference panelists were from diverse backgrounds--law professors, a former judge, a journalist, an anthropologist, a sociologist, and an economist. This sounds like the cast from a Crichton novel, and like any good thriller, the story must include an everyman. Joshua Greenberg was the conference's everyman--a recent high school graduate with fantastic speaking skills and a fascinating story. His brother and sister have a rare genetic disease so his family worked closely with researchers to develop tests and therapies for the disease. His family donated a lot of time and money, and the researchers repaid their kindness by patenting their findings and charging others a ton of money for the products. The Greenbergs are livid and want their sacrifices to benefit everyone. Joshua agrees with Crichton that genes should not be patented and after listening to Josh's story, the audience agreed that patenting genes is bad policy and that property interests in body parts should not be recognized.

Michele Goodwin Michele Goodwin, a professor at DePaul College of Law, told even more harrowing stories about American tissue banks. Hatchetmen in morgues and funeral homes are chopping up the dead and selling the body parts to doctors and hospitals that then transplant them into patients. The recipients are generally happy until they find out that the tendon they thought came from a 29-year-old car accident victim really came from a geriatric cancer victim. When the transplant recipient tries to sue for a defective product, the courts throw the cases out--product liability only extends to products, and since body parts are not property, they cannot be a product.

The courts are treating tissue banks like blood banks and calling the body parts that they are selling, sorry I mean providing, to recipients a service instead of a product. Professor Goodwin says that the tissue banks even are trying to have their cake and eat it too by taking out insurance on the tissues. If the tissue is stolen, then they can file an insurance claim for the stolen property, but if they are sued for a defective product, then they call the tissue a service, and deny that it is property. The audience was clearly outraged, and when she suggested that we treat body parts more like property, everyone agreed.

Debra Harry, the Executive Director of the Indigenous Peoples Council on Biocolonialism, described how researchers are treating indigenous peoples as knowledge databases to be searched or genetic mountains to be mined. Native cultures are finding that their genetic differences and their traditional medicines are being patented by researchers outside of their community. The result is that someone else owns their genes and medicines based on their traditional knowledge. She argues that the indigenous peoples collectively hold this knowledge and that it is inalienable. Although her argument is counter to Professor Goodwin's, it makes sense and the audience agrees that property rights that result from biocolonialism are a bad idea.

Justice Armand ArabianPossibly the most famous case dealing with gene patents and tissue ownership is Moore v. Regents of the University of California, 51 Cal. 3d 120, 271 Cal. Rptr. 146, 793 P.2d 479 (1990) (available free on the Supreme Court of California's website). In that case, Moore's doctor used cells from Moore's removed spleen to create, and patent, a new cell line that was a potential therapy for others. The California Supreme Court held that Moore did not have a property right in his removed spleen, and therefore did not have a property right to the patent based on cells of the removed spleen. Justice Armand Arabian wrote a concurring opinion, and he reminded the audience that reducing human tissue to mere property is to put the human body on par with potato chips and used auto parts. Granting a property right to Moore would give him the power to prevent his doctors from using his cells for research and therefore from creating therapies to treat other sick people. If treating a removed spleen like property means inhibiting scientific progress, then how can we possibly treat body parts as property?

The first panel gave the audience whiplash. Joshua Greenberg's story convinced the conference audience to say, "No!" to property rights in human bodies, but then Professor Goodwin showed us that the best way to stop hatchetmen was to implement property rights. Debra Harry showed that some knowledge and genetic information should probably be inalienable, and Justice Arabian reinforced this idea by telling the audience that it is immoral to treat a spleen like a diamond ring. During the question and answer session, a conference attendee, Professor Sarah Harding suggested a resolution to the apparently conflicting conclusions. She proposed that the "schizophrenia" over the property issue might indicate that property is not the right area of law to manage these issues--maybe we need a new legal regime to deal with genes and tissues.

Owning the Future by Seth ShulmanAfter the conclusion of the first panel, the audience was looking for a reason to separate tissues and genes from the property system, and they expected to find those reasons during the second panel -- "Intellectual Property and Gene Patents." Seth Shulman, a science and technology journalist, persuasively argued that the patent system was designed to protect "gadgets" such as toasters, but that it is ill suited for the knowledge-based economy. In areas such as computer programming and gene patents, the patents seem to be fundamentally different from earlier patents because the patents are not for "gadgets." He quotes the former president of Mentrix Software Inc., Wallace Judd, as saying "Rather than encouraging people to design a better mousetrap, the current patent system too often grants a monopoly on the idea of trapping mice." He calls a patent on an idea an "upstream patent" and argues that because other people have to get a license to use the upstream patent that the upstream patent restricts downstream product development.

Slide from Caulfield's presentationTimothy Caulfield, the Research Director of the Health Law Institute at the University of Alberta, has studied the effects of gene patents on health-care research and the clinical care that patients receive. The audience of the conference fully expected Professor Caulfield to detail the carnage that gene patents have wrought. He told the audience, however, that patents for genes seem to be working as designed. His studies have been unable to find that gene patents have caused serious problems for researchers. Yes, his studies have shown that consumers of health products have paid higher prices for products and services, but he gently reminded the audience that is exactly what a patent is supposed to do--encourage research by granting an exclusive right to the owner to charge higher prices for the product. This was almost as disappointing as finding out that Professor Snape was a good guy in the first Harry Potter movie. We wanted to hate gene patents and Professor Caulfield made us think that they might actually be working as intended. Thanks a lot, Professor Caulfield.

Dr. Stephen Hilgartner studies the social impact of genetics issues, including gene patents, at Cornell University. He saved the conference audience from despair by showing not only how the patent system has changed, but also what social forces led to the change. He argued that while the patent system previously focused on inducing inventions and disclosure of those inventions, that it is now entirely focused on property rights, and that innovation is a by-product at best. The new focus of the patent system, and how patent holders use the patent system, has led to the development of "managerial rights" that flow from the right of exclusion. These managerial rights effectively allow the patent holder to make decisions about health care for patients and doctors. Terrible! Even worse, private individuals, not public entities, make the decisions, so the decisions are opaque, and it is not always clear that the public health is being served. Pure evil. The potential abuse by patent holders has brought the intellectual patent system into the spotlight, and the public is demanding changes.

John M. Conley The final speaker for this panel was Dr. John M. Conley, who studies law and anthropology, and specifically the culture of lawyers in law firms. He was probably happy to study something other than Type-A personalities working long hours, drinking soy lattes, and obsessing over the size of their offices. His presentation was jam packed, and in less than 20 minutes, he explained: 1) how DNA replication works; 2) that DNA is made up of active and inactive sections; 3) how the active sections of DNA are transcribed by RNA, which makes proteins; 4) how scientists create "artificial" genes that are functionally similar to the real genes, but are structurally different because the artificial genes do not have the inactive sections; and 5) how these artificial genes fit our current system of patents. He points out that gene patents might actually make sense because the inventors created something that did not originally exist in nature. Even though gene patents seem to be the type of innovation that the patent system was designed to encourage, Professor Conley suggests that courts may limit them soon. First, he points out that the Supreme Court has only decided one gene patent case--in 1980! Furthermore, in 2006, the Supreme Court granted cert for Lab. Corp. v. Metabolite, asked for briefs about whether the process for diagnosing vitamin deficiencies was a patent on the laws of nature, but then dismissed the cert as improvidently granted. Professor Conley ponders whether the strong dissents of Justices Breyer, Stevens, and Souter means that those justices would vote to limit gene patents and other similar patents. He also tells us that courts may start striking down gene patents because they are obvious. The process of making an artificial gene is brilliant and innovative, but so is the process of using steel beams to make buildings. Just as it is obvious to use steel beams to make high-rise buildings today, it is now obvious to make artificial genes out of real genes.

After all of the presentations, it is clear that there are problems with buying and selling body parts and with property rights in genes. At some points in the conference, it appeared that the problems were so large that the entire property system needed to be overhauled, but after closer examination it appears that the property system merely needs to be tweaked. Furthermore, there were times during the conference where the participants were ready to take up arms to fix the problems, but after some reflection, it appears that the self-correction in the judicial system may fix most of the issues. Some help from Congress may be useful, and many of the panelists and most of the audience would like to see House Bill 977 passed.

With all of the twists and turns of the conference and with all of the colorful characters, I am sure that Crichton's next book will star Lori Andrews and her all-star team of intellectuals striving to solve a problem that is solving itself. Oh wait, that was the plot from The Andromeda Strain, so maybe Professor Andrews needs to bring Dr. Crichton back for another conferece.

My thanks go to Professor Henry H. Perritt, Jr. and Professor Andrews for their help.

1 Comments:

Anonymous Anonymous said...

Chicago-Kent student-blogger Hunter Hogan wrote this of the recent ISLAT conference entitled “Who Owns Your Body?”:

The audience of the conference fully expected Professor Caulfield to detail the carnage that gene patents have wrought. [Caulfield] told the audience, however, that patents for genes seem to be working as designed. His studies have been unable to find that gene patents have caused serious problems for researchers.

Indeed, Caulfield recently asked “academic biomedical researchers in the United States” to self-report instances when they had delayed or abandoned a project because of a gene patent. “[O]nly 1%” reported that a patent had caused them to delay a project, and “none” reported abandoning a project because of a patent. These results, taken alone, seem to suggest that gene patents are not hampering research efforts; however, several caveats should be noted.

First, Caulfield was quick to acknowledge credible evidence suggesting that gene patents have negatively impacted researchers who use genetics to develop diagnostic tools. This caveat is telling of the coming conflicts between researchers and gene patent owners. Diagnostics is currently the most established, most profitable field of genetic research. With concrete profits at stake, patent holders are likely to sue to enforce their rights. Researchers recognize this risk and shift their practices accordingly. In other fields of genetic research, profitability is not yet a reality. But as those fields mature, patent holders will have the same incentive to enforce their rights as currently exists in the diagnostics world – and gene patents will likely hamper research across the board.

The results of Caulfield’s study also may have been skewed by the methodology of interviewing only academic researchers. There is a persistent belief among academic researchers that they are shielded from liability for patent infringement. That belief is not grounded in the law. The Court of Appeals for the Federal Circuit severely limited any common law experimental use exception that may have existed previously in Madey v. Duke, stating the “experimental use defense is very narrow and limited to actions performed for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry.” Accordingly, research pursuant to any commercial purpose, including the business of education, is not exempt from findings of patent infringement.

Yet a false sense of confidence could be leading many researchers to ignore patents simply because they fear no repercussions. But if patent holders begin to aggressively litigate their rights, as anticipated above, then the tenor of the research community will shift dramatically. Additionally, the effect of gene patents on research is more accurately depicted when surveys elicit the response of individuals who actually review research proposals, such as laboratory directors. These individuals are generally more cognizant of the effects that gene patents have upon their institutions’ research endeavors.

Thursday, June 07, 2007 6:03:00 PM  


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