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Judicial education was an important component of the U.S. Department of Energy's Human Genome Program's Ethical, Legal, and Social Issues Program. The potential legal implications of the HGP are vast and information gleaned from the project is sure to be increasingly offered as courtroom evidence.

Discrimination cases based on the dissemination of genetic testing information to official or private entities will become commonplace. Motions for injunctive relief will be filed based on irreparable harm to general health, life, or the species posed by gene therapy and other biotechnology regimes. There will be judicial review of the administrative regulation of genetic testing methods and genetic counseling services. We can even expect claims challenging the validity of individual responsibility based on free-will considerations in light of the discovery of genetic traits that, it will be claimed, predispose certain individuals to violence or antisocial, thrill-seeking behavior.

In criminal cases, genetic identification is now a commonplace technology. Genetic proofs routinely are offered in paternity actions, and genetic tests will soon flood the courtroom with evidence purporting to support medical and nonmedical cases alike. All have ethical and social implications. Is a predisposition for colon cancer, for example, a legally justified reason to bar a person from mortgage insurance? Should predictive diagnostic information derived from genetic tests be suppressed in the absence of measures to prevent or cure? Will genetic causation be overdetermined in both concept and evidence?

In turning judicial attention to some of these ripening issues, we are spurred by the velocity of genetic research and the vigorous activity to turn it into commercial products. Genetic tests are big business and are largely unregulated. Genetic counseling is an irregular calling just taking form as a profession. A 1996 New Jersey case (Safer v. Estate of Peck, 291 N.J. Super. 619, 677 A.2d 1188) questions the availability of a cause of action based on genetically transmittable disease. Is there a duty to warn, the case asks, when a physician detects a genetically transmitted disease such as colon cancer? Conflicts of law surface immediately. What happens to the established privileges governing the patient-physician relationship? New conflicts come into view. Will the availability of gene therapy early in the new millennium provide many new cases that integrate scientific, clinical, legal, and ethical perspectives?

Supported by a grant from the Human Genome Program of the U.S. Department of Energy, the Einstein Institute for Science, Health and the Courts (EINSHAC) conducted a series of conferences for judges. The first conference was held mid-May 1997, cohosted by the Superior Court of the District of Columbia and the U.S. District Court for the District of Columbia. Fifteen jurisdictions sent representatives. Cases involving scientific evidence of natural inheritance were considered against a scientific backdrop of genetics, molecular biology, and biotechnology. Since 1997, conferences have been held nationwide, and two legal journals --Judicature and the Judges' Journal-- of the American Bar Association have devoted issues to genetics and the courtroom.

Articles on Genomics and the Courts

Genes and Justice
by Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court and chair of the National Commission on the Future of DNA Evidence
83 JUDICATURE 102 (November-December 1999)

Genes and Justice
by Denise K. Casey, science writer, editor, and educator with the DOE Human Genome Program
83 JUDICATURE 103 (November-December 1999)

Genes, Dreams, and Reality: The Promises and Risks of the New Genetics
by Denise K. Casey, science writer, editor, and educator with the DOE Human Genome Program
This primer explains the basics of DNA science and the Human Genome Project and offers a glimpse into the potential benefits and pitfalls of an astonishing array of some current and future applications of this powerful new technology.
83 JUDICATURE 105 (November-December 1999)

Genes and Behavior: a Complex Relationship
by Joseph D. McInerney, director of the Foundation for Genetic Education and Counseling
Although scientists agree on a connection between genes and behavior, the likelihood that we soon will use genetic analysis to accurately predict behavior or explain a criminal act is not great.
83 JUDICATURE 112 (November-December 1999)

The Impact of Behavioral Genetics on the Law and the Courts
by Mark A. Rothstein, Cullen Distinguished Professor of Law and director of the Health Law & Policy Institute at the University of Houston Law Center
New discoveries in genetics, including behavioral genetics, will raise a host of legal questions requiring careful scrutiny by the courts.
83 JUDICATURE 116 (November-December 1999)

The Human Genome Project and the Courts: Gene Therapy and Beyond
by Maxwell J. Mehlman, Arthur E. Petersilge Professor of Law and director, The Law-Medicine Center, Case Western Reserve University School of Law, and Professor of Biomedical Ethics, Case Western Reserve University School of Medicine
The courts will be called upon to settle an array of disputes involving genetic medicine among patients, health care professionals, insurers, and the government.
83 JUDICATURE 124 (November-December 1999)

Hope, Fear, and Genetics: Judicial Responses to Biotechnology
by E. Richard Gold, assistant professor, Faculty of Law, The University of Western Ontario
Although still in its infancy, biotechnology has already introduced such controversial issues as DNA typing, reproductive technologies, and patenting of animals before courts and tribunals worldwide.
83 JUDICATURE 132 (November-December 1999)

Keeping the Gate: the Evolving Role of the Judiciary in Admitting Scientific Evidence
by Joseph T. Walsh, justice of the Delaware Supreme Court
Advances in genetics will create further challenges to judges in their efforts to balance the need to accommodate "novel" evidence with the need to screen out "junk science."
83 JUDICATURE 140 (November-December 1999)

From Crime Scene to Courtroom: Integrating DNA Technology into the Criminal Justice System
by Christopher H. Asplen, assistant United States attorney and Executive Director of the National Commission on the Future of DNA Evidence
The National Commission on the Future of DNA Evidence, established by Attorney General Janet Reno in 1997, is charged with finding ways to ensure the effective use of DNA evidence.
83 JUDICATURE 144 (November-December 1999)

Complex Scientific Evidence and the Jury
by Robert D. Myers, Presiding Judge of the Arizona Superior Court in Maricopa County; Ronald S. Reinstein, Associate Presiding Judge of the Arizona Superior Court in Maricopa County; and Gordon M. Griller, court administrator, Arizona Superior Court in Maricopa County and a member of the Board of Directors of the American Judicature Society
Increasingly complex scientific issues, such as genetics, will further tax the jury system. Courts can and must seek new ways to help jurors cope more effectively.
83 JUDICATURE 150 (November-December 1999)

Educating Judges for Adjudication of New Life Technologies
by Franklin Zweig, President of the Einstein Institute for Science, Health & the Courts; and Diane E. Cowdrey, director of education at the Administrative Office of the Courts, Utah, and a member of the Board of Directors of the American Judicature Society
Judges will increasingly be called upon to adjudicate controversies related to genetics and biotechnology. A series of workshops is helping to prepare them.
83 JUDICATURE 157 (November-December 1999)

Introducing the Human Genome Project: Its Relevance, Triumphs, and Challenges
by Ari Patrinos and Daniel W. Drell, U.S. Department of Energy Biological and Environmental Research Program Human Genome Program
Provides an overview of the Human Genome Project, touching upon the science, organizational goals, ethical and social issues, and role of the courts.
36 JUDGES' JOURNAL 3 (Summer 1997)

What Can the New Gene Tests Tell Us?
by Denise K. Casey, science writer, editor, and educator with the DOE Human Genome Program
Offers a brief DNA introduction and discusses the gene tests engendered by the HGP and what they mean for a healthier future.
36 JUDGES' JOURNAL 3 (Summer 1997)

For More Information

• Genetics Privacy and Legislation
• EINSHAC