Kerry Abrams and Brandon L. Garrett (University of Virginia School of Law and University of Virginia School of Law) have posted Regulating Genetics on SSRN. Here is the abstract:
Over the past decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Far from representing a clear-cut story of genetics "essentialism" or even "exceptionalism" in which genetic evidence is prioritized above the alternatives, these efforts have been plagued by conflict. For example, the federal government’s support of DNA databases has come at the expense of using both DNA and traditional police work to solve live criminal cases. Similarly, federal welfare laws require states to use DNA evidence to establish paternity to collect child support from "deadbeat dads," creating potentially destabilizing effects on families. Moreover, courts often do not treat use of genetic evidence as implicating individual rights, policy trade-offs, or federalism problems regarding allocation of power between the federal government and the states. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person based on genetics. Next, we set out a typology that can be used to better understand how genetic testing has been legally regulated across a wide variety of fields. We identify two modes of regulatory action: intentional and incidental. These modes can be further divided into two methods of regulation: data-focused and ethics-based. Data-focused legislation concentrates on the short-term benefits of developing information about a population’s genetic information; ethics-based legislation, in contrast, is concerned with the long-term consequences of using DNA, such as effects on privacy or individuals rights. The ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of crucial legal and social institutions. This Article offers a descriptive account of how regulation has shaped and been reshaped by uses of genetic identity evidence and a normative critique of this dynamic.