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Abstract:
Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study?

Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics.

That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer?

These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human.

This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries the most potential for stigma. Part IV explores how the blame-shifting mechanisms of genetic reductionism and genetic determinism affect the individual, family, community, and society when genetics research focuses on criminal or antisocial behavior. Part V analyzes how racial and ethnic stigma arise from behavioral genetics research and perpetuate inequality. Part VI concludes by considering the ethical dilemmas that geneticists face when choosing who and what to study.

Abstract:
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests - tests to confirm or predict genetic diseases and conditions - threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results to inform the construction of a multi-factorial decision matrix to assist judges evaluate the appropriate role of this information in legal proceedings.

Through this analytical framework, the article illuminates doctrinal and theoretical tensions in existing criminal, evidence, constitutional and tort law that are likely to surface when efforts are made to apply current law in these areas to cases involving the use of health-related genetic tests. In addition, the article examines the broader implications of the wide scale use of these tests in court proceedings and argues that appellate judges and policymakers, who establish procedural rules governing litigation, will need to consider the collateral consequences of such wide scale use. Changes in some existing doctrines and/or rules may be necessary to accommodate challenges to underlying legal theories presented by these genetic tests and to preserve values such as privacy and family relationships threatened by the use of these tests in the courtroom.

patents, judges, empirical study, criminal law, constitutional law, evidence, tort law

Abstract:
In this article, the authors discuss the Maryland Court of Appeals decision in the case of Grimes v. Kennedy Krieger Institute, Inc. and its implications for the tort duty owed by researchers, in particular public health researchers, to their subjects. The Opinion resulted from two lawsuits alleging lead poisoning of children enrolled in a study conducted by the Kennedy Krieger Institute, a world renown pediatric research and treatment facility. The opinion shocked the research establishment with its scathing characterization of researchers and its apparent holding that in Maryland a parent cannot consent to the participation of a child in "nontherapeutic research or other studies in which there is any risk of injury or damage to the health of the subject." While this was the focus of much of the research community, the issue in dispute in the case was that of the scope of duty of the researchers.

Hoffmann and Rothenberg describe the facts leading to the case, many of which were omitted from the Court of Appeals decision which resulted from an appeal to a motion for summary judgment, and then discuss two possible interpretations of the Court's decision as it relates to the duty of researchers. One interpretation is based on a broad view of what constitutes the research endeavor and its associated risks and would arguably not result in a change in the legal duties of researchers. The other is based on a narrow view of the research project and would lead to the disclosure of risks not traditionally required by law as they fall outside of risks resulting from participation in the research protocol. The authors assert that as a result of confusion in the Opinion regarding the definition of the research study, the Court's decision may result in a significantly broader duty than has been posed historically in the research setting.

In addition to exploring the contrasting interpretations of the Court's Opinion, the authors "deconstruct" the scope of the duty as articulated by the Court and pose a series of questions as to how such a duty might be discharged and how realistic the Court's apparent expectations are regarding the duty or researchers. Finally, they discuss the implications of the Court's apparent broad based duty requirement in the context of public health studies and raise the question whether the Opinion may ultimately have negative consequences for the future of public health research in Maryland and for the compensation of injured research subjects.