Jessica L. Roberts (University of Houston Law Center) & Bradley A. Areheart (University of Tennessee College of Law) have posted The Future of Genetic Privacy (128 Yale Law Journal (2019 Forthcoming)) on SSRN. Here is the abstract:
How should we measure a law’s success? Congress frequently outlines its reasons for enacting legislation. But what if a statute fails to accomplish its articulated purpose but serves another—more important—end? The Genetic Information Nondiscrimination Act (GINA) has faced significant criticism since passing in 2008. Commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. However, on GINA’s ten-year anniversary, we argue that while GINA has failed to fulfill its purpose of improving attitudes toward genetic testing, it has achieved unanticipated success as an employee privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA is a blueprint for future employment laws.