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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. ↑

Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the origins of these curious institutions to dramatic transformations over the last forty years in the political economy of healthcare and the constitutional doctrine of church and state. At stake are the foundational commitments of secular government to equal citizenship and religious freedom.

Yet, constitutional litigation offers limited recourse. In an increasingly religious marketplace, only sustained attention to the political economy can reverse the confluence of church and state. This Article proposes strategies to unite religion law and political economy and to move from religious domination to pluralism and from discrimination to equality. As government-religious institutions proliferate beyond healthcare—in schools, prisons, police departments, and child-welfare agencies—reform efforts must take on broader trends toward consolidation, privatization, and religionization of the economy.

Introduction

Waking up in a hospital, you spy a religious painting at the foot of the bed. The doctors who rush in wear white coats with the names of a religious figure and of the state. Your treatment options, they tell you, must comply with the faith tradition. Clerics on the ethics committee will approve your care. As you recover, you learn that the government owns the hospital, pays the staff, and puts the state seal on the front of the building. On the board of directors, some seats are reserved for government bureaucrats, others for members in good standing of the Church.

This experience could describe hospital care in many countries around the world. But the United States is not known for such tight-knit relationships between any church and the state. Under the Establishment Clause, governments are not supposed to own or operate religious institutions. They are not expected to impose religious tests for public office or adopt a denomination as their own.

Nevertheless, they have. This Article reveals that across the country, church and state have fused in powerful entities that deliver critical services. The government’s religious hospitals are state-governed, state-run, and/or state-owned. But religion permeates their halls. Faith dictates their charitable missions and ethical decisions. Under the banner of the state, patients may be denied healthcare for religious reasons. Public employees must display religious messages and conform their conduct to religious rules. Positions of governance and leadership, typically open to all in public hospitals, are reserved for individuals who belong to particular sects.

Sometimes the state owns the religious institution outright—like the University of Alabama’s “faith-based health system”1 1.See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials].Show More with a mission of “witness[ing] to the love of God through Jesus Christ.”2 2.See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022).Show More Sometimes the religious and state entities become joint venturers—like Trinity Health and the University of Michigan, which agreed to run a hospital “consistent with the teachings of the Roman Catholic Church.”3 3.Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author).Show More Other times, a dense network of operational, managerial, or other relationships connects church and government—as at the University of Texas, the University of California, and numerous public health districts, where clinical staff and medical students must conform to religious teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.4 4.See infra Section I.D.Show More

So how did we end up with institutions that so thoroughly merge public and religious? This Article argues that the answer lies in dramatic transformations in healthcare’s political economy and in Religion Clause doctrine over the last forty years. Neoliberalism made government-religious hospitals economically and politically attractive during a period when the Supreme Court’s erosion of the Establishment Clause made them legally plausible.5 5.Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism).Show More These institutions, joining government authority with religious domination, undermine religious freedom and threaten equal citizenship in a pluralistic society.

From the 1980s onward, policies favoring austerity and privatization became ascendant and decimated the public sector. Public hospitals—a mainstay of cities and a natural home for public universities’ medical faculties—closed their doors or privatized as governments divested.6 6.See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014).Show More Meanwhile, rising costs prompted private hospitals to engage in a relentless drive for revenue.7 7.See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”).Show More They merged and consolidated at an unprecedented and accelerating rate, nearly eradicating competition in hospital markets.8 8.See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”).Show More

But healthcare’s political economy tells only part of the story.9 9.We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020).Show More A contemporaneous revolution in Establishment Clause doctrine abandoned principles of separationism and invited more intensive church-state partnerships.10 10.See infra Section III.B.Show More Not long ago, the government-religious hospitals we describe would have encountered rather obvious constitutional obstacles.11 11.See infra Section III.A.Show More Under the First Amendment’s Establishment Clause, a “wall of separation” was supposed to hold church and state apart.12 12.Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009).Show More States nonetheless could fund religiously affiliated hospitals, provided they delivered secular healthcare services, refrained from discrimination in hiring, and committed to respecting their patients’ consciences.13 13.See infra notes 207–38 and accompanying text.Show More But in the last few decades, courts dismantled a number of constitutional constraints on aid to sectarian institutions. By the early 2000s, Establishment Clause doctrine aligned with neoliberal economic policies to galvanize public partnerships with faith-infused institutions. Privatization took on a religious hue.

Faced with demands for healthcare provision and education, cities, counties, and public universities stepped into this constitutionally unsettled space. And they found few options for partnership. No longer was it common to find the public hospitals that once hosted safety-net services and academic medicine. Trends toward consolidation, which escalated with each passing decade, left nearly all cities with highly concentrated hospital markets.14 14.Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ].Show More The secular options assumed by judges and policymakers had dwindled.

Often, commercially successful religious entities were among the few potential joint venturers and partners. Most commonly, those entities were Catholic. Due to their “hierarchy and interconnectedness,” as well as their longstanding significant market share, Catholic healthcare systems had proved well-positioned to consolidate market power as neoliberalism took off.15 15.Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020).Show More And these religious partners, once motivated to claim nondiscrimination, now typically insisted on a more thickly sectarian identity.16 16.Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals).Show More In this landscape, governments created new institutions where secular and sacred, public and private, share governance, ownership, and operation.

Depending on one’s point of view, the central problem of these hospitals might be privatization of public services, restriction of healthcare access, or discrimination based on sex. While we are concerned about each of these issues, our focus is on the threat to religious freedom as dominance in healthcare has been converted into religious domination backed not only by private power but by the authority of the government.17 17.For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).Show More This confluence undermines equal citizenship and religious freedom in distinct and novel ways.

The promise of secular government is that equal membership in the political community will not depend on one’s religion and that the state will not impose religion on its citizens.18 18.See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950).Show More Government’s institutions will be open to all, controlled by the people, and able to give public reasons for decisions.19 19.See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same).Show More America’s religious churches and charities, by contrast, can serve co-religionists, discriminate in their choice of leaders, and give religious reasons that people of other faiths cannot understand.20 20.See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014).Show More

Government-religious hospitals upend this settlement and confound theories on both the left and the right about the relationship between church and state. Across the political spectrum, religion law scholars assume the existence of secular options and the absence of religious domination in the marketplace.21 21.See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”).Show More They broadly agree that equal membership in the political community cannot depend on one’s religion and that the state cannot prefer any denomination. One need not be a strict separationist to draw the line at a state institution that proclaims a denominational identity, imposes religious tests, and uses religious reasons.

The embrace of joint church-state institutions may not be inexorable. Preserving principles of secular government in an increasingly religious marketplace is still possible, if not through constitutional litigation, then by addressing broader trends toward consolidation, privatization, and religionization of the economy. This Article considers a range of concrete reform measures, from embracing competition policy to state provision of social services to transacting for church-state separation. In combination, these reforms would move, albeit incrementally, from religious domination toward pluralism and from religious preference toward equality.

This Article proceeds in four Parts. Examining articles of incorporation, asset purchase agreements, and management contracts, Part I explores the details of government-religious hospitals and presents a rough taxonomy of the forms they take. Parts II and III argue that major shifts in healthcare’s political economy and in Religion Clause doctrine over the last forty years together spurred the merger of church and state. The establishment of government-owned, -directed, and -operated religious hospitals came to threaten equal citizenship and religious freedom. Part IV turns to reforms. It demonstrates how antitrust enforcement, public options, and public utility regulation could reshape the political economy to remedy and forestall government-religious hospitals.

The setting of our law and political economy tale is the hospital sector, but evidence mounts that government-religious institutions may exist elsewhere. The legacy of neoliberalism, with its emphasis on privatization, drove and continues to drive religious-public collaborations—in schools, prisons, police departments, child-welfare agencies, and beyond.22 22.See infra notes 379–83 and accompanying text.Show More Alliances between religious and economic conservatives have generated transfers of public funds, services, and decision-making to religious institutions. And as in the hospital sector, seemingly unrelated changes in constitutional doctrine increasingly create a path toward merger of church and state.

  1. See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials]. ↑
  2.  See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022). ↑
  3. Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author). ↑
  4. See infra Section I.D. ↑
  5. Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism). ↑
  6.  See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014). ↑
  7.  See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”). ↑
  8. See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”). ↑
  9. We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020). ↑
  10. See infra Section III.B. ↑
  11. See infra Section III.A. ↑
  12. Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009). ↑
  13. See infra notes 207–38 and accompanying text. ↑
  14. Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ]. ↑
  15. Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020). ↑
  16.  Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals). ↑
  17. For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983). ↑
  18.  See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950). ↑
  19. See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same). ↑
  20. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014). ↑
  21. See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”). ↑

  22. See infra notes 379–83 and accompanying text. ↑

Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches

The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does not need to obtain a warrant before conducting a Fourth Amendment search. Individuals in Virginia, however, are protected not only by the Fourth Amendment but also under state law. And Section 19.2-59 of the Code of Virginia contains a ban on searches without a warrant, subject only to exceptions in the enforcement of game and marine fisheries laws—rather, that is what Section 19.2-59 seems to say it contains. In practice, the Supreme Court of Virginia has for decades interpreted the statute to provide the same protections as the Fourth Amendment, despite the stark differences between the two texts.

This Note’s first contribution is to explore that discrepancy. It documents how Section 19.2-59 was first passed during the Prohibition Era as part of a backlash to overly intrusive searches by law enforcement agents. It reveals that the Supreme Court of Virginia was originally willing to credit the statute’s plain meaning and interpret it as offering broader protections against unreasonable searches than the common law. In the middle of the twentieth century, however, the court began to misread those early cases, leading to the current understanding of the law that is divorced from its plain meaning. The history of Section 19.2-59 thus raises difficult questions of statutory interpretation. This Note’s second contribution is to identify those questions and begin articulating what the contemporary meaning of Section 19.2-59 should be.

Introduction

“Because we can only administer the law as it is written, the interpretative principle that precedes all others is that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says . . .’.”1 1.Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).Show More

Kenneth Wilson was pulled over as he drove through Chesterfield County, Virginia, on the evening of March 29, 2019.2 2.Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020).Show More The officer who commenced the stop did not initially give any reason for doing so. But after running Wilson’s license and registration, he ordered Wilson to step out of his car.3 3.Id. at *2.Show More Wilson responded by asking why he had been pulled over. The officer told Wilson that his headlight was out and opened the driver-side door. Wilson remained seated. The officer quickly repeated the order three more times, but Wilson did not budge. Then, without warning, the officer punched Wilson in the face and yanked him out of the car.4 4.Id.Show More

Once Wilson was restrained, the officer informed him that he had ordered Wilson to exit the vehicle due to the smell of marijuana.5 5.Id.Show More Wilson was patted down and escorted away. The officer then searched his car and found marijuana. In subsequent criminal proceedings, the Chesterfield County General District Court ordered that the drugs be suppressed.6 6.Id.Show More

Wilson sued the officer under both federal and state law seeking half a million dollars in compensatory and punitive damages. In considering the officer’s motion to dismiss, the U.S. District Court for the Eastern District of Virginia noted that one of the state law claims was for “unlawful search in violation of Virginia Code § 19.2-59.”7 7.Id.Show More The court did not take long to resolve the claim, simply noting that it “rel[ies] on the absence of probable cause” and citing to a 1968 Supreme Court of Virginia case in support of the proposition.8 8.Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)).Show More In Wilson’s case, the court reasoned, the smell of marijuana gave the officer probable cause that there was contraband in the vehicle. The Section 19.2-59 claim was accordingly dismissed.9 9.Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam).Show More

At first glance, the decision appears unremarkable. Yet it is notable for what the court did not do: consider the text of Section 19.2-59 of the Code of Virginia. If it had, the court would have needed to concede that the provision says nothing about probable cause. Instead, Section 19.2-59 seems to plainly prohibit the type of warrantless search that Wilson’s car was subject to. The statute starts with a simple command:

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer.10 10.Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.Id.Show More

That general prohibition is subject to an exception allowing for the warrantless searches of vehicles—but only when such searches are carried out in the enforcement of Virginia’s game or marine fisheries laws.11 11.Id.Show More The limited exception seems to further Wilson’s case, giving rise to a negative inference that warrantless automobile searches in all other contexts are prohibited.12 12.See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressiouniusestexclusioalterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)).Show More

The perfunctory treatment Section 19.2-59 received in Kenneth Wilson’s case is not unusual. In fact, Section 19.2-59 and its seemingly near-total ban on warrantless searches have gone almost entirely overlooked both in practice and in the literature. In practice, the statute is interpreted to offer the same protections as the Fourth Amendment,13 13.The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.Show More despite the fact that the Amendment allows for a large portion of law enforcement searches to occur without a warrant.14 14.See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”).Show More Section 19.2-59 is also understood to create a cause of action against law enforcement officers akin to that found in 42 U.S.C. § 1983.15 15.See infra Subsection I.B.2.Show More In the literature, the statute’s origins, development, and interpretation by courts have never been explored.16 16.A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”).Show More

This Note seeks to change that. Part I summarizes the current state of the law on illegal searches in Virginia under the Fourth Amendment, Section 10 of the Virginia Declaration of Rights,17 17.Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10.Show More and Section 19.2-59. Part II explores the history of Section 19.2-59.18 18.Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity.Show More It reveals the statute was originally enacted in 1920 as part of a larger bill meant to rein in the searches of state prohibition officers. Although the statute has been amended several times since, much of its substance remains the same as it was in 1920. Part III first analyzes how the Supreme Court of Virginia19 19.The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court.Show More interpreted Section 19.2-59 in the years immediately following its enactment. It then documents how, in the latter half of the century, the court misread those earlier cases, leading to the current application of the statute that departs not only from its text, but also from how it was originally understood by courts. Finally, Part IV makes a preliminary attempt at answering several questions raised by the analysis in Parts II and III.

  1. Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)). ↑
  2. Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020). ↑
  3. Id. at *2. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)). ↑
  9. Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam). ↑
  10. Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

    Id. ↑

  11. Id. ↑
  12. See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressio unius est exclusio alterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)). ↑
  13. The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. ↑
  14. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”). ↑
  15. See infra Subsection I.B.2. ↑
  16.  A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”). ↑
  17. Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10. ↑
  18. Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity. ↑

  19. The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court. ↑

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