A Theory of Genetic Dimensions in the Law

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and-indeed-with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments. However, legal decision -making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the legal uses of genetic technologies and disputes involving such technologies become increasingly prevalent, the disconnect between genetics and the law grows and deepens. This Article identifies and analyzes the impact of the longstanding judicial and legislative practice of applying ill-fitting legal constructs to genetic phenomena. We use case studies drawn from various legal areas to show how forcing genetic phenomena into existing legal categories neglects important genetic interests. The deficiencies of case law and legislation addressing genetics highlight the need for a more comprehensive way of thinking about, and legally recognizing, interests stemming from the multiple dimensions of genetic phenomena. In response, we provide a conceptual framework for incorporating genetic phenomena more fully into the law. Our approach offers legislators, judges, regulators, and lawyers a new way of thinking about genetics in the law, one that accounts for and accommodates the full range of individual, group, and societal interests in genetic phenomena.