Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts

November-December 1999  Vol 83(3)
EDUCATING JUDGES for adjudication of new life technologies
by Franklin Zweig and Diane E. Cowdrey

Virtually no day passes and no newspaper publishes without reference to new developments in biotechnology, and most have legal implications. A few are studded with ethical controversies. Many portend widespread social adjustments. Because legislatures are slow to act, those controversies can be expected to be brought to court systems for resolution. Courts will become the first—not the last—resort for both dispute resolution and policy interpretation during the 21st century's early years.1

Judges, and sometimes juries, will adjudicate controversies related to biotechnology—the ability to invent and influence life forms at the molecular level, technical deployment of reversible and permanent changes to crops, plants, animal life, and the structure and function of human biology.

While economically-relevant civil cases are directly related to the new life technologies, so will be criminal proceedings. The use of biotechnology to engineer brains resistant to addictive disorders, for example, could have vast implications for the criminal justice system and for our rights-based jurisprudence.

America leads the world in biotechnological advances, and is impeded by little regulation. American judges should anticipate that international as well as domestic parties will paper U.S. state and federal courts and international forums with demands for injunctive relief, damages, and criminal law enforcement. How will judges cope?

This article discusses conferences presented by the Einstein Institute for Science, Health & the Courts (EINSHAC) designed to orient 2003 judges by year 2003 to evidence from genetics, molecular biology, and biotechnology. It also describes an impact evaluation of the Western States Genetics in the Courtroom Conference, the ninth in a series of 16 conferences.

The curriculum for the conference series has been well developed and tested. Most conferences are three days, but may vary to accommodate local sponsors' needs and interests. Three types of conferences have been designed: basic genetics training for federal and state judges; specialized conferences on behavioral genetics, biomarkers, and biological property; and policy courts conferences for justices and judges of reviewing forums. With an objective to raise judicial confidence in case management, conferees report that informal contacts with science advisors at the conferences are a valuable educational experience.

Participation in three day, problem-solving conferences appears to have a significant ripple effect and other useful impacts, but must be subjected to better tests as the series proceeds. The results of the impact evaluation also prompt us to ask whether judicial temperament is itself influenced by genetic factors; and whether the judiciary of the future will be selected in part from test results utilizing genetic screening technologies. Whether answered affirmatively or negatively, the courts will find orientation to the new biology indispensable to 21st century case management.

Learning about the new biology
Judges need a special form of science education in order to craft and implement adjudication tailored to novel, complex cases. Audiences at 11 molecular science conferences conducted during the past two years favored a combination of laboratory, science background and judicial applications problems. EINSHAC's three day conferences have delivered genetics, molecular biology and biotechnology curriculum to approximately 1,100 judges. Six more conferences are on the drawing boards for years 2000 and 2001. They will offer to an additional 1,000 judicial participants problem-based, collegial forums to envision causes of action, case content, and novel evidence management.

Powered by an evidence jurisprudence in the United States that recently has imposed upon federal judges a new duty of science and technology gatekeeping—a duty that has in one form or another been adopted by an estimated one-half of state courts—the conference series offers a knowledge foundation to promote case management. The new biology challenges judges with novel, even revolutionary findings, with tests and testing technologies that immediately harness those new findings, and with a generation of expert witnesses that did not exist even five years ago.

Our goal is not to transform judges into arm chair scientists. It is to aid management of cases brought to the courts, to facilitate just resolution of the disputes that turn upon the biological revolution in cases from A to Z—one might say from Adoption, where a demand is now heard for genetic testing profiles, to Zoological Diversity, where introduction of genetically-engineered life forms may be claimed to aid or injure a planetary region's gene pool.

But does it work?
A three day conference linking science, ethics and law is challenging fun for judges years away from Biology 101. But that does not mean its impact will endure. What happens when the rosy glow at conference departure gives way to the next several months' case calls?

To find out, an impact evaluation was developed by the Utah Administrative Office of the Courts, one of the sponsors of the conference convened in October, 1998 for judges from five Western states.2 Conducted six to ten months after the conference's conclusion by Utah's chief judicial educator, structured personal interviews were used to measure the conference's perceived usefulness and impact. Twenty interviews were conducted from among 80 participants; 16 were deemed usable for the evaluation report. Names were chosen randomly from sub-samples stratified to assure representation from each of the five states that sent conferees. The objective was to evaluate a single conference's impact from its participants' point of view; just as important, we sought a template for evaluating future conferences' impact during the second tier of genetics in the courtroom offerings, those planned for the first three years of the new century.

The evaluator asked judges from each of the five participating states what they remembered most vividly about the conference; how meaningful retained information and perspectives appeared six months later; whether they applied material acquired at the conference in cases; and to what extent post-conference collegial activities were spurred by conference participation, including continuing study. Judges were also asked if the conference had increased their confidence in managing genetics-related cases. In service to brevity, we discuss only general findings and two impact dimensions below.

The full report concludes that judges exhibited from their conference experiences considerable satisfaction, concept durability, and application a half year following the conference. However, we caution about over-generalizing the findings. This was a single conference follow-up and may not be representative of the other conferences.

A qualitative research design was chosen in order to elicit fuller information from conference participants than would have been possible using quantitative research methods. This study may provide guides for future evaluations using quantitative scales, studies designed to more thoroughly describe and explain the judicial experience at the interfaces of bioscience, ethics and law. An advantage afforded by the Western State's impact evaluation study was that all interview comments were transcribed, making it possible to relate judges' experiences in their own words.

Retained meaning
Not everyone had had the opportunity to use the information in a case since departing the Western States Conference, but when judges did have a case related to genetics, they reported they were better able to manage it and felt more confident in doing so. Learning theory tells us that if new information is presented in such a way that learners can make connections with old information, learning will occur. Based on the evaluation's interviews, all of the attending judges included in the follow-up sample reported retained recall that held significant meaning for them. Responses tended to fall into one of three categories:

Judges' answers sometimes fell into more than one of these descriptive categories. For instance, some judges recalled specific genetic technical information—the structure of DNA, for example—and then seamlessly incorporated it into remarks about their work as a judge. Judges comments, minimally edited and coded by subject numbers to protect identity, therefore, often bridged response categories. The following included both specific and general recall of technical information:

I acquired a better understanding of DNA, what it means, what it can be used for, how it is acquired, than I ever had before...

...In terms of what I got out of it, I felt that I got a much better grasp of technical scientific issues and genetics, and DNA fingerprinting and I think I was able to share those thoughts in a constructive way with the other judges.

Rather than recalling specific, technical information from the conference's science presentations, some participants highlighted philosophical issues that were raised in the course of the Western States' conference curriculum. Some judges reported having raised issues themselves in and following their conference participation. Others found that the conference affected them profoundly and personally:

And the two things I came away with were...one, that the very rich are going to be able to genetically engineer their children. They're going to end up to be a different species than the rest of us. And two, that our legislature, both the state and federal, as we just had proven to us once again, are controlled by special interests, and they are not going to protect us from the life insurance companies and the health insurance companies who are going to use DNA to our detriment.

You know, another judge and I, while we were going through the conference, took some time, probably a couple of hours, and talked about our philosophy of life and the impact that this had on that. It was really an interesting discussion that I won't forget. It just made me sort of marvel at life. At how amazing it is that we live and die and that we can generate human life from this little descriptive code. So that really sticks with me. The ethics of the scientists really sticks with me. I was really impressed and happy to see such integrity and such concern and compassion. You know, people think scientists are sort of test-tube and kind of removed and everything, but these people really do it because they're interested in life, and human beings and life. That sticks with me.

Some participants were more focused on connecting the information presented with their work as a judge. They reported remembering the implications of the science in the discharge of judicial and/or legal professional responsibilities:

...And as a judge, I've thought about that (free will vs. biological determinism) a great deal in sentencing and dealing with complex problems within our communities, and how much of those are volitional? How much of that activity may in fact be genetically based? So this whole concept of sort of individual free will versus social determinism and genetic determinism is something I think about a great deal since the conference.

There are things that I remember from the conference in terms of the role that genetic evidence is going to play in all kinds of litigation and not just DNA criminal cases, but all these other types of case examples that we discussed at the conference. The context in which it can come up in terms of employment discrimination and you know, civil cases, as well as criminal.

"Ripple effects"
Like ever-widening ripples in a pool stirred by a thrown stone, conference content and perspectives were spread to others, increasing dissemination, and extending conference impact. Among individuals, impact echoes also were detected with respect to participants' heightened interest in continued, personal, scientific learning. Conference ripple effects can be described in three categories:

Some participants in the first category reported more formal dissemination of conference-based information, as illustrated by the following quote:

...There were four or five of us there (from the same bench) at the conference. When we came back, we gave a panel presentation on the conference...and then we videotaped it so that it's available to the judges that couldn't get to that conference.

In addition to increasing the breadth of impact by discussing the conference with fellow judges, some participants increased the depth of the impact by continuing to educate themselves in the area of genetics:

I've paid lots more attention to them [current news releases involving genetics] than I ever did in the past, simply because now that I have the additional education that I got from the conference, I am more able to understand things and I'm curious, waiting for those breakthroughs, waiting for when they're going to be announcing them, those sorts of things...it's just paying attention to magazine and newspaper articles that I probably would've ignored before this conference.

I did do a lot of additional reading on...one aspect of DNA and.. I did a presentation, from the standpoint of what issues does this raise for some of the medical cases we hear and how, from the perspective of the care provided or treatment provider, and that's what I was reading about.... It was in our packet of articles that we received and I used that packet to get to other articles.

Although the Western States Conference offered no prescriptions or model orders for judicial management of genetics-related evidence, participants offered many comments that pointed to increased confidence in case management generally. A few had been assigned criminal cases and felt more comfortable with the DNA forensic evidence introduced and in managing expert witnesses. Ninety-three percent of the judges reported an increase in their confidence level in presiding over genetics issues. Detailed in the impact evaluation report, several judges noted the conference saved them time when on-point cases arise. Having been provided a baseline of knowledge in genetics, these judges were able to grasp and absorb testimony more quickly, ask relevant questions of witnesses when necessary, and feel more confident about their rulings.

Screening for judicial temperament
Evaluative comments were gratefully received, but they also raised a question. Could it be that self-selection in the decision to accept an invitation to attend an ethics-studded science conference is the dominant variable underpinning the meeting's success? Would another sector of the judiciary be more science-resistant, less favorably impressed with the legal implications? Answers to these questions must await the evaluation research planned for the next generation of conferences. Using case controls, EINSHAC plans to compare judicial attendees with non-attendees. But we wonder, on the other hand, if the issues advanced simultaneously at meetings and as questions to non-participants might stir the same level of interest. Is there something about the desire to be a judge, and about the art of judging, that elevates interest in genetics?

From the inheritance of intelligence to causes of violence and mental illness to the cure of addictive disorders, behavioral genetics appears to hold special fascination for courts. Perhaps judges expect molecular biology to provide keys to the scourges of human nature and nurture that appear daily in our 30,000 courtrooms. Scientific claims certainly will abound as the map of our genes gives way to huge numbers of predictive genetic tests, many of them purporting to spot potentials for mental and emotional flaws that will occur later, perhaps decades later, and for some of which treatment forseeably will be available. Pharmacology has produced in recent years a growing storehouse of mood-altering drugs. What if scientists claim the ability to create genetic screening that will predict temperament in general, the durability of judicial temperament specifically?3 Would the public demand it? Would policy makers adopt it? Would judicial appointment screening panels require it? Would a judicial candidates' own rights to privacy be vulnerable to assault as an incident of a desire to serve the public from the bench?

Such questions shape one complex scenario selected for small group discussion by some genetics' conferences' judicial planning committees.4 In the hypothetical fact pattern, a judicial screening commission requires a predictive genetic test for Alzheimer's Disease and Bi-Polar (manic-depressive) Disorder. Both clinical conditions could handicap the dispassionate, detached, objective, even-handed, calm-inducing professional conduct expected of judges in their attempts to resolve disputes. The scenario, in turn, raises all the scientific, legal, ethical, and social issues set in motion by on-rushing advances of molecular biology, biotechnology, and human genetics. Nothing could be more occupationally salient for the bench. Nothing could stir more attentive discussion. But scientific validity is key to the discussion. And a working understanding of the terms used by the scientific community is necessary to assess that validity.

We expect that the jury will be out for the next few years as we explore more fully the possible connection between judicial temperament, genetic testing, and civil and criminal case management. This line of future investigation may well help the courts cope with complex issues just around the bend.

*****

An observation ends this brief discussion. In order to function as adjudicators of issues stemming from scientific manipulation of the new biology, judges, in their own interest, must shop for opportunities to get smart about fields thought long ago to have been abandoned in favor of the law's majesty and power. The law trumps in a constitutional system. Adjudication rules in a democracy founded upon personal rights. But disputes rooted in the biotechnologies affecting human nature will be brought powerfully to court in novel claims founded upon a new generation of scientific evidence and biological engineering. That evidence will be orbited by ethical, legal, and social issues that will require Solomon's wisdom and Einstein's insight.
 


Franklin Zweig is President of the Einstein Institute for Science, Health & the Courts.

Diane E. Cowdrey is director of education at the Administrative Office of the Courts, Utah, and a member of the Board of Directors of the American Judicature Society.

The ideas and expressions of this paper are solely those of the authors; they do not necessarily reflect the policies or opinions of the Einstein Institute for Science, Health & the Courts, its directors, or its sponsors, or the courts of the State of Utah. Support for this article was provided in part by the Office of Biological and Environmental Research, U.S. Department of Energy through grant no. FG02-DE-96ER62170 and by the National Institute of Environmental Health Sciences, National Institutes of Health, U. S. Department of Health and Human Services through an inter-agency agreement for the same grant award. Nothing in this article should be interpreted as reflecting the policies or opinions of the aforementioned federal agencies.

1. The economic value of knowing the exact ingredients (sequencing) and location (mapping) of the human genome is clearly presented in Gillis Cracking the Code, Business Magazine Supplement, The Washington Post, September 27, 1999, at 18-20.
The concept of a gene is crucial to all EINSHAC case management and review scenarios. For a clear, digestible, recent overview, see Shreeve, Secrets of the Gene, 196 National Geographic 42-76 (1999).
For a perspective on some forecasted implications of life technologies based upon genetic engineering, see the special supplement, Your Bionic Future, 10 Scientific American (Fall, 1999).
2. Cowdrey, "Courts and the Challenges of Genetic Testing: Impact Evaluation Final Report," September, 1999, Administrative Office of Utah Courts, 450 South State Street, PO Box 140241, Salt Lake City, Utah 84114-0241.
3. Judicial temperament is a term of art generally incorporated into Canon 2 of the American Bar Association's Model Code of Judicial Conduct. A neuroscience-based conception of temperament may be found in Hamer, Living with Our Genes 12-25 (New York: Anchor Books/Doubleday, 1998); also see, Hamer, Tweaking the Genetics of Behavior, in "Your Bionic Future," 10 Scientific American 62-67 (Fall, 1999). This is a very different conception from judicial temperament highlighted in the legal literature that focuses mainly on intemperate behavior as a foundation for disciplining judges' misbehavior on the bench. See, A Perspective on "Temper in the Court," 23 Fordham Urban L.J, 709 (1996); Decentralized Self-Regulation, Accountability and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1990, 142 U. Pa. L. Rev. 25 (1993); and Disciplinary Action Against Judge on Ground of Abusive or Intemperate Language Toward Attorneys, Court Personnel or Parties to or Witnesses in Actions and the Like, 89 A.L.R. 4th 1278 (1991, 1998 Supp.)
4. The case scenario involving genetic testing of judicial competencies and predisposition is entitled Walker v. Judicial Nominating Commission. It may be ordered from from The Einstein Institute for Science, Health and the Courts, 5505 Connecticut Avenue, NW., Washington, DC 20015.


 
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