Biotechnology and the Legal Constitution of the Self: Managing Identity in Science, the Market, and Society

This article revisits the case of Moore v. Regents of the University of California to explore and elaborate an approach that points toward a more effective and just manner of ordering the legal management of identity in the realm of biotechnology-and perhaps beyond. First, Professor Kahn explores how the tort of appropriation of identity, as invoked by the California Appellate Court in Moore, opens up new approaches to inform and perhaps supplement principles of property law as a guide to managing genetic information or other materials that seem intimately bound up with a particular human subject. Second, he analyzes how the California Supreme Court opinions in Moore implicitly elaborate a powerful and problematic relation between the spheres of private life, science and the market, such that the science is granted special status and power relative to the other two. Finally, he considers how, by focusing on the significance of identity-constitutive affiliations, the Appellate Court's application of the concept of appropriation may be used to shift the legal debates over "group rights" to the issue of "rights through groups"-that is, to consider how legal treatment of groups through which individuals derive, construct, and/or maintain significant aspects of their identity implicates individual rights.