all in the genes

Wired has a story about the passage in the US HR of the Genetic Information Nondiscrimination Act. The nub:

If legislation passed Wednesday by the House of Representatives becomes law, it will be illegal to deny a job or health insurance on the basis of a person’s genetic makeup.With more links drawn between genetic profiles and disease predispositions every day, supporters of the Genetic Information Nondiscrimination Act say the bill will ease patients’ worries of being singled out for faulty genes.

As genetic technology becomes more and more advanced and accessible, it will be interesting to see how things develop. For example, although this bill makes it illegal to deny someone employment based on genes, what happens if people start voluntarily disclosing their genetic results in order to make them stand out as a better candidate? If they do, the end result could be the same. And what then? Might the result not be the same? Would there be legislation then introduced to preclude positive, as well as negative discrimination?

It also makes for rather interesting ethical questions. For example, one argument that could be advanced is that genes simply reveal various characteristics of a person that may or may not make that person suitable for a job. For example, if genetic testing determines that an individual has a 90% chance of having a fatal stroke in the next year (and no, I have no idea whether or not that is an accurate example), should that person be hired as the pilot of a 747? Why would it not be reasonable to not hire that person on the basis of those results?

Of course, that very argument, if taken to its ultimate conclusion, also has the potential to lead to truly horrific (at least IMHO) dystopian societies.

Time to go watch Gattaca again.

Wikiality – Part II

There was some traffic on the ULC E-Comm Listserv (on which I surreptitiously lurk – and if you don’t know what it is and are interested in e-commerce law, highly recommended) about courts citing Wikipedia with a couple of links to some other stuff, including an article on Slaw as well as an article in the New York Times about the concerns raised by some regarding court decisions citing Wikipedia. Some excerpts and notes to expand on my previous post:

From the con side:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

This raises a good point that I didn’t mention in my previous post. I certainly think Wikipedia is fine to note certain things, but I really, definitely, positively, do not think that it should be cited as judicial authority. In my previous article I thought this was so self-evident I didn’t bother mentioning, but the quote above illustrates that it might not be all that clear. Court decisions, as most of you know, are written by judges who take into account the facts and apply the law to the facts of the case, along with other facts and information that may have a bearing on the case. The source of the law includes statutes and of course previously decided cases, which enunciate rules or principles that the court either applies, distinguishes based on the facts as being inapplicable, or, in some cases, overturns (for any number of reasons). Court decisions are not, of course, published on Wikipedia and are not subject to the collective editing process of Wikipedia, nor should they be. Rather, references to Wikipedia in court cases are to provide additional or ancillary context or facts to a case. They do not and should not derogate from principles of law that are set forth in court decisions. But, contrary to what Mr. Ryesky, Esq., indicates above, I don’t think referring to Wikipedia for context or facts will suddenly undermine the foundations of law, since the legal reasoning itself still will and must be based on sources of law, not facts and not context.

Hence the following end to the NTY article:

Stephen Gillers, a professor at New York University Law School, saw this as crucial: “The most critical fact is public acceptance, including the litigants,” he said. “A judge should not use Wikipedia when the public is not prepared to accept it as authority.”

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

He added, “The higher the court the more you want to do it. Why do judges cite Shakespeare or Kafka?”