[This memorandum sent to other members of the faculty in the college of business at
is included for its pure whimsy. It has no serious purpose, but may offer some light enjoyment.] Wichita State University
Legal Implications of Prof. Lee Nehrt’s “Kidney Stone Venture”
From Dwight Murphey,
March 14, 1978
Professor Lee Nehrt has invited contributions from other members of the faculty with regard to his proposed venture for the manufacture and marketing of a new novelty item (akin to the recently popular “Pet Rock”) which is to be known as “The Kidney Stone.”
In this memorandum, I will explore some of the more important legal implications. The Kidney Stone raises novel questions of law that may affect the feasibility of the venture. I anticipate that their complexity will require a substantial budget item for legal expenses. I trust that the investors will stay within the College in seeking legal assistance.
We can brush aside as essentially frivolous a threshold legal issue that will almost certainly be suggested by those ubiquitous souls who view the law as a proper field for remote speculations. This is the issue of whether the law has ever settled the theoretical basis upon which property rights in kidney stones may rest. Because it may be presumed, even without an exhaustive search of existing legal sources, that there has never been a court decision relative to property rights in kidney stones, some persons learned in the law will undoubtedly be heard to suggest that we cannot be sure that such stones are the proper subjects of property. But this fails to take into account the generous extension of the property concept during recent centuries. It is true that until modern times the predominant form of property was land, with women and slaves running a close second; but the rise of a highly sophisticated commercial economy has been matched at each step by an appropriate accommodation of the law. Many previously unknown forms of property have come to be recognized. These have even included property in things that are purely intangible. We might confidently predict, I should think, that the same courts that have extended the concept of property to “goodwill” and “choses in action” will have little hesitation in applying the concept to kidney stones. We recall Mr. Justice Holmes’ famous admonition that we should “look at the law as a bad man looks at it: as a prediction of what the court will do in fact.” And certainly whatever is good for a bad man is good for a kidney stone.
Disposing of this more abstruse issue does not, however, dispose of a much more serious issue of property law that exists relative to kidney stones. This second issue is by no means trivial, and is subject to plausible argument from diverse points of view. It is the issue of who the owner is to be. Someone who is not well versed in the law will tend to jump hastily to the conclusion that the stones necessarily belong to the person in whose body they were formed. For ease of discussion, I will refer to this person as the “Incubator.” The simplistic view (based on an over-easy “common sense”) that the Incubator is the owner should be resisted. If we consider the legal principles and analogies involved, the arguments are about equally balanced between those who would contend that the stones belong to the Incubator and those who would contend that ownership is in the surgeon. (I assume, without really knowing, that such stones are removed by surgery. If they are extricated from the body by other means, the argument simply shifts to whoever recovers the stones after their elimination. This person may be the doctor, a nurse or a sewage technician. But no matter. The same legal principles would apply to them all.)
The argument in favor of the Incubator is not without prestigious authority, if not in the law at least in the history of philosophy. It was John Locke in the seventeenth century who argued that property emerges from a person’s joining of his labor with the materials of the earth. The thing, whatever it may be, became his once he had mixed his labor with it. By analogy, we may say that the Incubator of a kidney stone has “mixed his labor” with the materials that have come together to form the stone within his kidney. At the very least, this individual has invested the stone with his pain and with all the discomfiture that accompanies the stone’s elimination. The stone did not exist before the Incubator made his contribution, which must be considered a sine qua non of the stone’s very existence as a kidney stone. For these reasons, there is a very cogent argument that the Incubator should be declared the owner.
On the other hand, there is also a plausible argument on behalf of the surgeon. In the history of property law, there has long been recognized a type of property that does not come into being until someone reduces the thing to his own dominion. Wild animals are no ones property until they are reduced to dominion by someone’s taking them into possession. A shark in the sea, for example, belongs to no one until it is caught or at least netted or hooked. While it is true that kidney stones are within the body of a human being before their elimination, it can hardly be said that they have been the subject of his dominion. During their residency within him, they occupy more the character of adverse parties—or, more appropriately, of fiercely wild things lurking untamed in the wilds of the human form. Human dominion over them does not exist until they lie helpless in the hand of the surgeon. I am sure that in a candid moment any person who has incubated one will admit that until the act of elimination it was the person who was in the stone’s dominion, not vice versa.
I suggest this important question of ownership so that the investors will not stumble blindly into a legal thicket. The question of ownership cannot be resolved definitively until at least a declaratory judgment is obtained. This will mean no less than eight years of litigation, if we may use the
airplane crash litigation as a reasonable yardstick for anticipating the dispatch of our courts. Wichita State University
Before I conclude this memorandum, I should direct the readers’ attention to the applicability of a certain new and complex area of federal regulatory law. I am referring, of course, to the probable claim of jurisdiction that will be made by O.S.H.A. (the Occupational Health and Safety Administration). We must not forget that Professor Nehrt is proposing a manufacturing process, and that this process has a specific site at which it is conducted. It is certainly a process that bears closely on the health and safety of the person employed in the manufacture. Under such circumstances, we can hardly suppose that O.S.H.A. representatives will overlook the need to inspect all workplaces, with or without a warrant. Lest it be argued that the sanctity of the Incubator’s person entitles him to a Constitutional right to refuse governmental inspection, we should bear in mind that on the scales of Constitutional justice a claim of right has often been given less weight when its exercise is encompassed within a commercial, profit-making setting than when it is not. One may generalize from the decisions of the past half-century that businessmen are not within the ambit of Constitutional protection. That is a protection that has been reserved, at least until certain recent rumbles to the contrary by the all-too-tenuous majority of the
Burger Court, to the Communist, the mugger, the strangler, the pornographer, the pimp and the bomber. It is too much to expect that a majority of the Court would now come to reserve it also to the American businessman. We must remember that judges are the creatures of their own time. None could be expected so radically to fly in the face of the contemporary Zeitgeist.
In light of all these things, I will suspend judgment until I hear from the rest of you as to whether I will personally choose to invest in the project.
Prof. Dwight D. Murphey