Genome Editing and the Jurisprudence of Scientific Empiricism
93 Pages Posted: 9 Apr 2016 Last revised: 15 Apr 2017
Date Written: December 1, 2015
Humankind has reached, in tow by the hand of a scientific breakthrough called CRISPR, the Rubicon of precise genetic manipulation first envisioned over fifty years ago. Despite CRISPR's renown in science and its power to transform the world, it remains virtually unaddressed in legal scholarship. In the absence of on-point law, the scientific community has attempted to reach some consensus to preempt antagonistic regulation and prescribe subjective standards of use under the guise of a priori scientific empiricism. Significant and complex legal issues concerning this technology are emerging, and the void in legal scholarship is no longer tolerable.
This Article shrinks the scholarly gap, and it is the first to introduce CRISPR to legal literature. By providing a resource for jurists, scholars, and practitioners, it challenges conventional notions concerning the false dichotomy frequently associated with mutually exclusive normative roles for science and law. The Article makes two independent contributions. First, it lays a robust and comprehensive epistemic foundation of genome editing suitable for legal audiences. This element is descriptive, but essential because a detailed and coherent understanding of the nuts-and-bolts of the science is requisite for a discussion of law and policy. Second, it advocates for a jurisprudence of scientific empiricism, namely, a normative legal framework that consolidates empiricism and technological—e.g., genome editing—applications into a uniform doctrinal structure unencumbered by common substantive impediments to constructive debate. These impediments consist of impractical and often sensationalist claims about issues raised by technological advances and are collectively characterized as "deceptive simplicity." The proposed paradigm, which lays a blueprint for the legal community to combat the deleterious effects of scientific illiteracy, flows from the Supreme Court's recent decision in Association for Molecular Pathology v. Myriad Genetics and is broadly adaptable to addressing questions of science in law.
Applying this framework, the Article reconsiders Buck v. Bell and argues that, contrary to long-held views, Buck is not a direct product of false science, but of unbridled deceptive simplicity. Lastly, the Article sets the stage for a series of forthcoming works that will analyze genome editing from regulatory, constitutional, international, egalitarian, ethical, and policy standpoints, which highlight pivotal synergistic roles for law, science, and public policy in the development of this remarkable nascent biotechnology.
Keywords: CRISPR, Intellectual Property, Genome Editing, Gene Editing, Genome Engineering, Genetic Engineering, Jurisprudence, Scientific Empiricism, Law and Science, CRISPR Law, Genome Editing Law
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