Property Law Assignment 1
MOSK GIVES US MOORE OF AN IDEA ABOUT PROPERTY
Contents
MOSK GIVES US MOORE OF AN IDEA ABOUT PROPERTY 2
INTRODUCTION 3
PROPERTY DEFINITION 4
ADAPTABILITY 5
LEGISLATIVE GUIDANCE 6
ETHICS AND EQUITY 7
WEAKNESSES OR STRENGTHS? 10
POST ‘MOORE’TEM 13
CONCLUSION 14
INTRODUCTION
The question of property rights in human tissue has traditionally been relevant in matters concerning dead bodies. However, with the rise of Biotechnology human tissue storage is increasing rapidly and so are questions about ownership. Moore v. Regents of the University of California is one of the most influential American cases. The court considered whether the plaintiff had ‘stated a cause of action against his physician and other[s] … for using his cells in potentially lucrative medical research without his permission’. The majority ruled that a physician must ‘obtain [a] patient’s informed consent’ and disclose unrelated research and economic interests which could ‘affect … medical judgment’. However, they identified ‘several reasons to doubt’ the plaintiff had maintained a property interest in his excised cells to support an action of conversion. They also ruled that the facts did not warrant extension of the tort. Their main reasons were matters of policy, a preference for a legislative solution, and the existence other protective avenues. The judgment has been criticized for being inflexible, incorrectly assuming an extension of conversion was required, and allowing policy to inhibit reasoning. The dissenting opinion of Mosk J delivers a clearer understanding of the elusive parameters of property. It outlines a conceptually broad definition of property and commends it as a system for ‘resolving disputes between parties with different interests in an object’. It also demonstrates the capacity of the parameters of property law to evolve with technological change, incrementally adapt to the expectations of society, and provide
Contents
MOSK GIVES US MOORE OF AN IDEA ABOUT PROPERTY 2
INTRODUCTION 3
PROPERTY DEFINITION 4
ADAPTABILITY 5
LEGISLATIVE GUIDANCE 6
ETHICS AND EQUITY 7
WEAKNESSES OR STRENGTHS? 10
POST ‘MOORE’TEM 13
CONCLUSION 14
INTRODUCTION
The question of property rights in human tissue has traditionally been relevant in matters concerning dead bodies. However, with the rise of Biotechnology human tissue storage is increasing rapidly and so are questions about ownership. Moore v. Regents of the University of California is one of the most influential American cases. The court considered whether the plaintiff had ‘stated a cause of action against his physician and other[s] … for using his cells in potentially lucrative medical research without his permission’. The majority ruled that a physician must ‘obtain [a] patient’s informed consent’ and disclose unrelated research and economic interests which could ‘affect … medical judgment’. However, they identified ‘several reasons to doubt’ the plaintiff had maintained a property interest in his excised cells to support an action of conversion. They also ruled that the facts did not warrant extension of the tort. Their main reasons were matters of policy, a preference for a legislative solution, and the existence other protective avenues. The judgment has been criticized for being inflexible, incorrectly assuming an extension of conversion was required, and allowing policy to inhibit reasoning. The dissenting opinion of Mosk J delivers a clearer understanding of the elusive parameters of property. It outlines a conceptually broad definition of property and commends it as a system for ‘resolving disputes between parties with different interests in an object’. It also demonstrates the capacity of the parameters of property law to evolve with technological change, incrementally adapt to the expectations of society, and provide