Someday soon, virtually any pregnant woman will be able to learn — with 98-99% accuracy — whether her fetus has contracted a serious genetic disorder by undergoing nothing more than an inexpensive, non-invasive blood test. For years, scientists have sought a method of prenatal testing that could boast both high levels of accuracy and low levels of risk. The most promising solution lies in an exciting recent discovery: tiny quantities of fetal cells and DNA cross over into the mother's bloodstream during pregnancy. If the fetal genetic material can be successfully isolated from the maternal blood, it can be used to diagnose a number of genetic disorders, such as Down Syndrome, cystic fibrosis, Tay-Sachs disease, and sickle cell anemia. Indeed, researchers have spent the last decade developing ways to accomplish this.

This well-known quotation from one of America's foremost judges provides an important admonishment about the role of history within the law. Holmes’ admonishment is that, even in common law systems, we should not allow ourselves to become too dependent on legal rules laid down in the past. Legal rules laid down long ago are as likely as newly constructed ones to have flaws in their reasoning or be difficult to implement in real-life situations. Furthermore, even in cases where the rule may have originally served some purpose, it may nevertheless be out of date and therefore have little continuing benefit to a particular legal system.

Sales of brand and generic pharmaceuticals in the United States reached $274.7 billion in 2006. Consumers in this country, including the federal government, are paying tremendous amounts of money for drugs and the cost continues to be a growing concern for all parties involved. Part of this increased cost encountered by consumers can be directly attributed to the ever-increasing costs manufacturers must cope with in the development of new drugs. Economists estimate that it takes twelve to fifteen years to develop a single new drug and have it approved by the Food and Drug Administration (“FDA”). The average cost: $800 million. For every 10,000 compounds investigated, only five are ever tested as potential medicines in clinical trials and only one is ever approved for patient use. Of all the drugs approved by the FDA, only three out of ten generate revenues that meet or exceed average research and development costs.

In 2003, the University of Hawaii proposed patenting the Native Hawaiian genome with the purpose of generating both economic- and healthrelated benefits for the Native Hawaiian people. This proposal, however, was strongly opposed by the Native Hawaiian community, which viewed it as an unwelcome imposition of Western property concepts upon their traditional ideology. Population-based genetic databases are not an entirely new concept. The governments of Iceland and Estonia have created national genetic databases and assumed authority over their ownership and operation. Iceland has even licensed its genome to a private company. Furthermore, the United States has previously been involved in patenting the genetic code of other indigenous groups, such as the Hagahai tribe in Papua New Guinea and the native inhabitants of the Solomon Islands. A patent on the Native Hawaiian genome, however, would be unique because it would concern the rights of American citizens.