David Bollier

The Texas Supreme Court has dramatically rolled back the scope of the public trust doctrine as it applies to Texas beaches in a 5-3 ruling by the all-Republican court. This means that the public’s right to enjoy shorefront on the Gulf of Mexico will be sharply curtailed in the years ahead -- a major victory for private property fundamentalists.  Judicial activism, anyone?

The court’s decision focused on the public's access rights to beaches when hurricanes or storms have eroded a public strip of beach.  Should the public be prohibited from using the "new beach" that might now be situated on privately owned land?  Or should there be a “rolling easement” that recognizes public access no matter how natural forces remake the actual shoreline? 

For decades, the Texas state public trust doctrine gave a rolling easement that assured public access to beaches.  That access right did not inhere in a particular strip of land, but in a general right of access.  Now, the court ruled, reversing decades of established law, if a storm washes away the public beach, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.”  As reported by the Texas Observer, “the court dismissed the 180-year-old custom of public enjoyment of Texas beaches as ‘unsupported by historic jurisprudence’ and ‘a limitation on private property rights’.”

State attorney general Greg Abbott noted:  “With the stroke of a pen, a divided court has effectively eliminated the public's rights on the dry beach….The majority could only cite—nothing.  Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.”  Even the Galveston Chamber of Commerce joined the attorney general in seeking to uphold the historic understanding of the public trust doctrine.

In patent law, they have a saying:  the name of the game is the claim.  And when it comes to patenting the naturally occurring elements of plants, the human body and other living things, patent lawyers have shown themselves to be highly ingenious in making their claims.  Their goal, of course, is to own any knowledge about nature that is needed by lots of people and can be sold.  Patent law lets companies establish artificial chokepoints over knowledge that should belong to all of us, giving the “owner” the right to charge a toll and stifle potential competition.

This trend got its start in 1980 when the U.S. Supreme Court first allowed the patenting of lifeforms in the Chakrabarty case, which allowed the patenting of microorganisms.  That in turn opened the floodgates to the patenting of genes, plants, bioengineered crops, and much else.  Harvard University famously owns the patent of a specially bred mouse for cancer experiments, the “onco-mouse.”  There is much to be said for the fruits of biotech research, but there is also much to be lamented and condemned as far as the needless privatization of knowledge and stifling of competition and innovation.

Now it seems as if the tide could be turning against the patenting of nature  The U.S. Supreme Court just ruled unanimously that a diagnostic medical test that determines levels of metabolites in a person’s blood (in order to administer the proper dosage of a class of drugs known as thiopurines) cannot be patented.  The case, Mayo Collaborative Services v. Prometheus Laboratories, arose when the Mayo Clinic in Minnesota decided to develop its own metabolite diagnostic test and stop buying the Prometheus product.  Prometheus sued, saying that the Mayo Clinic’s self-devised diagnostic test violated its patent.  The Mayo Clinic responded that no one can own basic knowledge about human physiology and nature.

It was a pleasure to see Arnold Relman and Marcia Angell receive such well-deserved visibility in yesterday’s New York Times for their campaigns against the “commercial exploitation of medicine.” Drs. Relman and Angell are both former editors of The New England Journal of Medicine, together and separately, from 1977 to 2000.  They are also husband and wife since 2009.  He’s 88 and retired, and she’s 72 and still teaches at Harvard Medical School. 

Relman and Angell built the NEJM into a formidable editorial platform during their tenures as editors.  Much of this came from the quality of the research that they published.  But it also derived from their willingness to challenge Big Pharma’s insidious attempt to corrupt the independence of doctors, medical journals, medical education and patients.  Here were two highly esteemed physician-editors using the sheer credibility of research and their journal’s reputation to face down the multi-billion pharmaceutical industry, which has unleashed a veritable hydra of wily, unethical schemes to boost profits. 

Among them:  undisclosed industry payments to researchers to produce studies that make a new drug look good; undisclosed industry payments to leading physicians to teach courses that have the effect of promoting certain drugs and medical devices; undisclosed industry junkets and gifts to physicians to try to encourage more prescriptions of certain medications.  And so on.

A four-module online course on the commons has just been launched by the UN Institute for Training and Research (UNITAR) based in Geneva, in conjunction with the University of Notre Dame’s Mendoza College of Business. The four modules focus on the history of the commons, the special value proposition of the commons, the dynamics of enclosure, and a survey of commons-based strategies.  Officially called “Introductory e-Course to the Global Commons,” the self-paced course, taught in English, consists of videos, online readings and resource links, as well as self-test quizzes.

I helped develop this course over the past year, working closely with Professor Leo Burke of the University of Notre Dame and e-learning specialist Robin Temple.  There are, of course, many ways to introduce and teach the commons.  This is just one path into the subject.  We were especially mindful that we were devising an online course that could be interesting and accessible to a highly diverse general audience -- a special challenge since there is no moderator.

We think the course pulls together some notable talks and readings to introduce the commons to UN delegates and government officials, who are the target audience/participant group.  However, students, academics, businesspeople and the general public are also invited to take the course.  To register, just go here. The deadline for registration is April 20.