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June has been an interesting month for DNA at the Supreme Court and for technology and the law generally. Justice Scalia demonstrated his own signature brand of judicial restraint by declining to sign on to those aspects of last Thursday’s Myriad Genetics decision that explained “fine details of molecular biology.” Given the reception those explanations received from people who make their living based on their knowledge (and beliefs) about science, Scalia may have been right to acknowledge his limits.
Earlier in the month though, he wrote for himself and Justices Ginsberg, Sotomayor, and Kagan, dissenting passionately from the Court’s decision in Maryland v. King. Whatever limits may apply to Scalia’s knowledge and belief regarding the technical details of DNA and composite (or is it complimentary?) DNA, he’s pretty sure that the founders would have thrown a boatload of Q-tips into Boston harbor before they let King George swab their cheeks.
Legal generalists (who are not necessarily any more comfortable with the nuances of current science than Scalia) have always wrestled with the scientific and technical issues that present new facts to old law. Frigaliment brought us a judge exploring the limits of “chicken.” New science brings new questions though, so now we wonder whether DNA is properly classified as a product of nature or of nurturing lab techs. (9 votes for ”it depends”?) Is collecting it for “identification” purposes and then comparing it to a database of unidentified samples more like a finger print or a warrantless home invasion? (5-4 for fingerprint.) Before long, they’ll find themselves deciding just how far the NSA can extend an invisible technological dragnet (Hi NSA!) before the founders would start throwing iPhones in the nearest body of water. The Court tries to understand the science and the consequences, looks for a good analogy, and makes law.
Technological change alters the way law intersects our daily lives. The ability to manipulate and interrogate DNA has transformed our understanding of biology, revolutionized medicine, and introduced certainty (and even a measure of control) into issues of human reproduction that were once subject only to hope and faith. We can thank science for giving women more information about cancer risks, and we can blame science for Maury Povich. I was going to link to a collection of “You are NOT the father” videos, but that wouldn’t be fair to you. It also wouldn’t be fair to science.
It turns out, science just makes it possible to test for genes like BRCA1 and BRCA2 or to prove that a particular man isn’t biologically related to a child. It doesn’t decide whether those tests will be monopolized by a single company, or whether we should exploit the attendant drama on daytime television. Science doesn’t get to decide who your daddy is. Those are policy choices and personal choices.
So it is important to get the science right (or at least close), but then we have to consider how to use that information to advance the policy goals embodied by the law. Scalia’s dissent wasn’t about the science, it was about a historical rejection of general warrants. He knew enough about the science to know that anyone claiming to “identify” a known suspect in custody by comparing the arrestee’s DNA to samples from unsolved crimes is either being insincere or is not a “minimally competent speaker of English.” He knew enough to raise questions about whether we would accept this kind of general cataloguing in other contexts where “identity” matters. It was a good question, and one that policy makers will have to address in matters technological as well as biological.
We need our jurists to be minimally competent consumers of scientific knowledge, and we need our lawyers to be even better at discerning and communicating the features of new technology and scientific breakthroughs. That will allow decision makers, who will always be more familiar with the older technologies, to make good law for the technologies that replace them.
–Jeffrey W. Sheehan
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