The article focuses on “nonconsensual genetic use”: The use of the “singular genome”—namely, the genome of a single individual—by private entities (e.g., researchers and personal adversaries), without the knowledge or consent of the person from whom it was taken.
The Article maps the legal landscape in the United States and explores how the genome is conceptualized in briefs, court decisions, and legislation. The analysis reveals two main findings. First, there is a tension between two fundamentally different conceptions of the genome. The genome is conceptualized as either a “public good,” governed by public health law; or as a “private good,” governed by a private property regime. This binary division is superficial and can lead to harmful outcomes. Second, parties in court proceedings, judges, and legislatures are using the legislation and court proceedings to “negotiate” the value of the genome. This indicates that the governance of the genome is de facto a function of power.