Seeds

When we think about the legal definitions of life, what comes to mind? I think for most people we remember Roe v. Wade or Karen Quinlan, cases emotionally charged overwhelming the underlying analysis. But there are many legal decisions defining life that are equally important but are overlooked and for many, unknown. 

Let’s begin with seeds because they provide an important lesson of the relationships between trade, social good, governance and are a useful lens because they do not carry the emotional power of our body or its parts.

Historically, farmers were sharing and saving seeds reflecting a Commons, sharing seed's genetic material. The federal government facilitated the Commons to promote self-sufficiency. In the late 1800’s 30% of the USDA budget was dedicated to supporting seed collection and sharing.  Seed hybridization a technologic advance was a more efficient version of the farmer’s manipulation. This efficiency allowed business to find a foothold in the Commons, money and power flowed towards seeds as they became a commodity, “a good that can be sold and does not have the ability to reproduce itself.” Before 1930 seeds were not patentable, they were a ‘product of nature’, but legislation followed the money. The commons began to transform into a private enterprise and space.

In March 1980, the Supreme Court in a 5-4 overturned a decision of the US Patent and Trademark Office, a regulatory body, and allowed privatization and commodification of the genetic material of seeds. The court found that products of nature, when changed by man, created a fundamentally new, patentable, ‘product.' By 1987 the Patent Office announced it would accept applications for new animal life forms and within a year, Harvard patented the Oncomouse, used in cancer research. Without much of a national discussion, genes, at least of ‘lesser’ life forms, were now a commodity.

In the thirty years since that decision, we can prescribe human insulin rather than that derived from animals, 3,000 gene patents have been granted, and 20% of the human genome is now privately owned.

A much earlier legal decision, based on English Common law. Business structures, like guilds or banks, had existed for some time, but the newly created corporations were

…an entity with rights similar to those of states and individuals, with limited liability and significant autonomy...

Corporations have many advantages to their owners, not the least of which is that responsibility falls to the corporation, a legal entity, not to its shareholders and not to its agents/employees. Perhaps the greatest corporation of all times is lost to us in the dim recesses of high school history, the East Indian Company (EIC).

The EIC was the original too-big-to-fail corporation. The EIC was the beneficiary of the original Big Bailout. Before there was TARP, there was the Tea Act of 1773 and the Pitt India Act of 1783. The former was a failed attempt to rein in the EIC, which cost Britain the American Colonies.  The latter created the British Raj as Britain doubled down in the east to recover from its losses in the west. An invisible thread connects the histories of India and America at this point. Lord Cornwallis, the loser at the Siege of Yorktown in 1781 during the revolutionary war, became the second Governor-General of India in 1786. But these events were set in motion over 30 years earlier, in the 1750s. There was no need for backroom subterfuge.  It was all out in the open because the corporation was such a new beast, nobody really understood the dangers it represented. The EIC maintained an army. … Its officers were not only not prevented from making money on the side, private trade was actually a perk of employment …  And finally — the cherry on the sundae — there was nothing preventing its officers … from simultaneously holding political appointments that legitimized conflicts of interest. If you thought it was bad enough that Dick Cheney used to work for Halliburton before he took office, imagine if he’d worked there while in office, with legitimate authority to use his government power to favor his corporate employer and make as much money on the side as he wanted, and call in the Army and Navy to enforce his will.

Corporations were engines of the industrial revolution bring us wealth and health. In the last 15 years, corporations have put cell phones in the hands of 6.8 billion people, tying us together in ways not possible 5 or 10 years ago, they have also given us Enron, and the conditions creating the Big Short.

In the last few weeks, the National Highway Transportation and Safety Agency, another regulatory agency, defined a new legal-life, a new legal entity. Without fanfare, of interest to only a few, at least for now 

The NHTSA will interpret ‘driver’ in the context of Google’s described motor vehicle design as referring to the (self-driving system), and not to any of the vehicle occupants …We agree with Google its (self-driving car) will not have a ‘driver’ in the traditional sense that vehicles have had drivers during the last more than one hundred years.

In 2010, highway accidents accounted for $871 billion in economic and societal harm, about $2800 for every real person living in the US. Now, the driverless car holds out the promise of fewer accidents so that number should fall, hopefully dramatically. But the question is this when an accident does occur – and it will – who is responsible? Will it be the engineer that wrote the algorithm, or their employer – a corporation, or perhaps it is the vehicle’s human occupant?

The vaunted electronic health records (EHR) are simply storage and translation devices, not considered medical devices. Errors in the functioning and ‘translation’ of EHRs are not required to be reported to anyone, even other users. Algorithms are all around us and increasingly important in healthcare. As best practice algorithms integrate with EHRs they will do more than ‘alert’ us, they will act on our behalf, as agents just like the algorithms of the driverless car, ordering tests, sending messages to our patients and co-workers, managing care. Our work will improve. But what about those pesky accidents – they will continue to happen, and in that case, will it be the legal life forms, corporations or algorithms that are held responsible, or will it fall back on a human? I’m good with it being the human, but I think that we need to make that an explicit conscious decision, not a decision made by a regulatory body, influenced by money and power like our friends the GMO seed, the Oncomouse or the self-driving car.

The history of the corporation comes from Ribbonfarm and the 1980 Supreme Court ruling from the Scholarly Commons of Northwestern Law School.