Abstract

http://ssrn.com/abstract=2473728
 


 



DNA and Distrust: Reexamining the Regulation of Genetic Identity


Kerry Abrams


University of Virginia School of Law

Brandon L. Garrett


University of Virginia School of Law

December 5, 2014

Virginia Public Law and Legal Theory Research Paper No. 2014-41

Abstract:     
Over the past three 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. Courts have struggled with questions when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. 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. Judges and lawmakers have often drawn a bright line at predictive testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions “not relevant to identity.” In this Article, we argue that policy implications of genetic testing laws cannot be so neatly demarked. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from “deadbeat dads,” which may be relevant to identity, but also creates potentially destabilizing effects on families. We set out a typology to frame how genetic testing has been legally regulated across a variety of fields. We identify two modes of regulatory action: intentional and incidental. These modes can be further divided into data-focused and ethics-based regulation. We particularly critique data-focused legislation ostensibly focused on short-term benefits of gathering a population’s genetic information; ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. Judges, legislators and scholars should focus squarely on the individual and government interests at stake, and not at the doctrinal characterization of the particular use of genetics. This Article offers a descriptive and normative critique of reductionist legal analysis of genetic regulation. The regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.

Number of Pages in PDF File: 63

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Date posted: July 31, 2014 ; Last revised: December 6, 2014

Suggested Citation

Abrams, Kerry and Garrett, Brandon L., DNA and Distrust: Reexamining the Regulation of Genetic Identity (December 5, 2014). Virginia Public Law and Legal Theory Research Paper No. 2014-41. Available at SSRN: http://ssrn.com/abstract=2473728 or http://dx.doi.org/10.2139/ssrn.2473728

Contact Information

Kerry Abrams
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-7361 (Phone)
Brandon L. Garrett (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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