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What the Heck Is “Law and the Biosciences” – and Why Do We Need It?
When I tell people that I work in “law and the biosciences,” I see confusion. I quickly add “I work on the legal, ethical, and social implications of advances in the biological sciences, particularly genetics, neuroscience, assisted reproduction, and stem cell research.” Most people then look a bit less confused, but I sure wish I didn’t have to explain. I think we would be better off if the phrase were commonly understood – and if law schools wanted to hire professors in “law and the biosciences” and to teach courses on “law and the biosciences.” Here are my reasons, lawyerly separated into substantive and procedural – but I could be wrong.
Substantively, I believe that advances in the biosciences will have increasingly large effects on our society and hence on our law. Sometimes the effects on law will be direct – think about forensic DNA or the possible effects if neuroscience produces accurate lie detection or bias detection. Sometimes the effects will be through the growth of new threats or new rights that lead to new kinds of controversies, lawsuits, and policies to avoid lawsuits – think about genetic discrimination in insurance, the invasion of genetic privacy through the collection of “discarded” DNA, “parental” status in complicated IVF/surrogate parent scenarios, or the appropriate use of various “brain-changing” pills or technologies. And sometimes the effects will be deeper, subtler, and more important, such as a possible cultural shift toward determinism as a result of genetics or a shift away from free will as a result of neuroscience. I believe – and I have to confess this is more a matter of faith than of empirical proof . . . maybe I should say I have to believe – that our societies, worldwide, will handle the disruptions and opportunities these technologies present better – or, at least, less poorly – if some legal academics think about them first. And if law students hear about them and think about them before going out into law firms, in house counsel positions, public interest jobs, or government appointments.
The procedural argument may be harder to make: why call it “Law and the Biosciences” and think of it as one “thing”? Because these issues overlap, a lot, and because they don’t fit anywhere else. Some basic knowledge about and openness to biology is crucial to lawyers who want to deal with any of these topics. And some of the topics – like privacy, for example – show real interesting similarities across subject matters. But, maybe equally important, these issues don’t fit anywhere else – and if issues don’t “fit” into a law school box, they risk getting lost. They are only a small part of Health Law, of Bioethics, of Intellectual Property, of Law and Science and none of those will take in more than a small part of law and the biosciences.
So I think we need to talk about this new field – not to make ourselves feel better, but because thinking of it as a field will make our world work better. But I could be wrong. I welcome your thoughts – on whether we need a new field and, if so, how we go about creating one.