Science Fiction and Shed DNA

By D.H. Kaye[*]

[Editor's Note:  This piece is a reply to Elizabeth E. Joh, Reclaiming "Abandoned" DNA:  The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. 857 (2006) (link).]

Introduction

The year is 2025.  The population is 325 million, and the FBI has the DNA profiles of all of them.  Unlike fingerprints, these profiles reveal vital medical information.  This universal database arrived surreptitiously.  First, the Department of Defense's repository of DNA samples from all military personnel, established to identify remains of soldiers missing in action, was given to the FBI.  Then local police across the country shadowed individuals, collecting their shed DNA for the databank.  On the way, thousands of innocent people were imprisoned because they had the misfortune to have race-based crime genes in their DNA samples.  Sadly, it did not have to be this way.  If only we had passed laws against collecting and using shed DNA . . . .

This science-fiction story is loosely inspired by an essay on Reclaiming "Abandoned" DNA, by Professor Elizabeth Joh.  Her article makes "the case for special consideration of abandoned DNA" in view of the nature and "potential uses of this information."[1]  Like Joh, I believe that collecting shed DNA deserves scrutiny, as does the prospect of a universal database.[2]  Furthermore, I agree that DNA is a uniquely revealing form of trace evidence and that the legal system must recognize its power to expose an individual's genetic secrets.  Nonetheless, we part company on the threat posed by collection of "abandoned DNA."  First, the notion that abandoned DNA is a viable means for covertly building a population-wide database is implausible.  Second, any claim that the DNA profiles currently used for identification constitute "predictive medical information" is false.  Third, the prospect of preventive detention of bearers of "crime genes" lends little support to a warrant requirement.  Fourth, the practice of collecting shed DNA has no particular relationship to theories of "race" as a biological reality.

In making these points, I take no position on whether shed DNA deserves Fourth Amendment or other protection.  The scope of the Amendment will be addressed in a separate article that will show how some forms of "abandoned DNA"—or the chemical analyses of this molecule—can be brought within the Fourth Amendment.  Here, I focus on what Joh calls "the implications of abandoned DNA" as a motivation for the legal reforms she advocates.

On Affirmative Action and "Truly Individualized Consideration"

By Andrew Koppelman & Donald Rebstock

Abstract:

In its most recent affirmative action decisions, the Supreme Court has declared that, in order for an admissions program to permissibly take race into account, it must give each applicant "truly individualized consideration."  Each applicant, it has said, must be "evaluated as an individual."  The rhetorical power of the opinion rests on the contrast between crude, mechanical sorting and an admissions process in which applicants are treated as the unique people they are, and in which each of them gets precisely the result that he deserves.

This rhetorical move is a cheat.  Nobody ever gets exactly what he deserves.  In any case, giving people what they deserve is not the business of an admissions office.  The Michigan Law School process that the Court approved flunks this standard.  So does Northwestern's, which is even more individualized.  So does any other possible admissions program.  Truly individualized consideration is impossible.  The Supreme Court has tried to make a vain dream into a constitutional requirement.

This essay has four parts.  Part I reviews the "individualized consideration" requirement laid down in Gratz and Grutter.  Part II describes what an actual law school admissions process is, at an unusually prosperous, small, and selective law school.  This process has many virtues, but it would be an exaggeration to say that it achieves truly individualized consideration.  Part III contrasts admissions decisions with the one other area in which the Court has demanded individualized decisions:  the administration of the death penalty.  The admissions process is far cruder than anything the Court would accept in the death penalty context.  Part IV argues that when the actual goals and methods of the admissions process are understood, it becomes clear that racial diversity is continuous with, rather than in violation of, those goals and methods.

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Copyright 2006 Northwestern University

Cite As: 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 49 (2006), http://www.law.northwestern.edu/lawreview/Colloquy/2006/6/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/6/

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A Cautionary Tale: By One Way of Counting the Democrats' Hold on the New House of Representatives Will Be Very Precarious

By Robert W. Bennett[*]

We all know that the Democrats gained a decisive House of Representatives majority in the 2006 election, so that their party will be comfortably in control of that body in the Congress that will convene in early January of 2007.  As of the time I am writing this, the Democrats have clearly won 231 of the 435 House seats for the new Congress, with five races still undecided.[1]  With a majority of that size, we can say with great assuredness that the Democrats will be able to elect the new Speaker and name Chairs for House committees.  That is the sense in which the Democrats will be in control—a very important sense indeed.  When they stick to their partisan guns, moreover, the Democrats will also be able easily to control final votes on legislation.[2] 

But even with party fidelity, the way the votes are to be taken on one matter would put the Democrats in control by the skin of their teeth.  The change in party affiliation—or temporary defection—of just one vote could deprive the Democrats of that bit of "control."  The matter I have in mind will never come before the House that will convene in January, but the precariousness of the Democrats' control in such a count should provide a warning sign for the future—for the Democrats, to be sure, but more importantly, for all of us.