For years, the collection of DNA samples from individuals arrested for criminal misconduct has been advocated by police officials and endorsed by politicians. Louisiana, Virginia, California, and South Dakota have adopted laws to add DNA profiles derived from these samples to their DNA databases. Texas provides for DNA to be taken after indictment but before conviction. Although the U.S. Department of Justice initially shied away from the issue, the DNA Fingerprint Act of 20055 authorizes the collection of DNA from individuals arrested for violations of certain federal criminal laws, and the inclusion in the national DNA database of all profiles from states that type DNA prior to conviction.

But are these laws constitutional? In an article in a previous issue of this journal, and reprinted in this issue, Professor Tracey Maclin concludes that fidelity to precedent should lead the Supreme Court to strike down the Louisiana and Virginia laws as violations of the Fourth Amendment.

Most discussions of the use of race and ethnicity in biomedical research and clinical care focus on broad national and transnational populations. Looking at the problem from the perspective of large populations, however, misses the rest of a continuum that runs from the global human population to local communities. If race and ethnicity are fundamental categories for biomedical analyses, they should be informative at all points along that continuum, much as the definition of a gene remains unchanged whether analyzed in the context of an individual, a group, or the total human population. By examining the utility of racial and ethnic categories at a local community level, we can better evaluate whether those categories are indeed fundamental units for analysis. Alternatively, these categories may be analytic proxies useful primarily for approximating aggregate biological and social features of large populations at national and transnational levels of analysis.

The definition of death is one of the oldest and most enduring problems in biophilosophy and bioethics. Serious controversies over formally defining death began with the invention of the positive-pressure mechanical ventilator in the 1950s. For the first time, physicians could maintain ventilation and, hence, circulation on patients who had sustained what had been previously lethal brain damage. Prior to the development of mechanical ventilators, brain injuries severe enough to induce apnea quickly progressed to cardiac arrest from hypoxemia. Before the 1950s, the loss of spontaneous breathing and heartbeat (“vital functions”) were perfect predictors of death because the functioning of the brain and of all other organs ceased rapidly and nearly simultaneously thereafter, producing a unitary death phenomenon. In the pretechnological era, physicians and philosophers did not have to consider whether a human being who had lost certain “vital functions” but had retained others was alive, because such cases were technically impossible.

Like biotechnology before it, nanotechnology is beginning to provoke opposition from environmentalists concerned about the ethics of the development and application of nanotechnologies. Given the lack of data on environmental health and safety regarding how nanoparticles might impact the environment and effect the health of the human body, some environmentalists have called for limits on the production of nanoproducts until more research can be done to prove their safety. On the other side, while nanotech scientists and engineers agree that additional study of possible harmful effects is in order, they argue it would be unethical to turn our backs on what nanotechnology may do to help clean up the environment and improve health. They argue that a ban on nanomaterials would be shortsighted.

The issue of how race and genetics should interrelate goes to the heart of an unfinished discussion about race and racism in both the United States and around the world. The category of race is still powerful and dangerous, especially in scientific work. Addressing this issue is all the more important given the fact that race is still frequently essentialized and treated as biologically real. This tendency continues even as social and natural scientists such as Troy Duster and Charles Mills largely agree that race is a social construction. Mills sees this racial construction as deeply rooted in the legal and constitutional orders of American society. Race is a modern category invented by white male scientists in the “era of modernity” and instantiated globally in the consciousness, social practices, and institutional interstices of Western European cultures, among countless others worldwide. Indeed, the pseudoscience of the period was highly informed by tales of difference brought back by explorers.

Most contributors to the debate about brain death, including Dr. James Bernat, share certain assumptions. They believe that the concept of death is univocal, that death is a biological phenomenon, that it is necessarily irreversible, that it is paradigmatically something that happens to organisms, that we are human organisms, and therefore that our deaths will be deaths of organisms. These claims are supposed to have moral significance. It is, for example, only when a person dies that it is permissible to extract her organs for transplantation.

It is also commonly held that our univocal notion of death is the permanent cessation of integrated functioning in an organism and that the criterion for determining when this has occurred in animals with brains is the death of the brain as a whole – that is, brain death. The reason most commonly given for this is that the brain is the irreplaceable master control of the organism's integration.

A number of recent reports and overviews on the ethical and societal problems of nanotechnology present a public that is polarized about nanotechnology. Very little responsible analysis can be found between those poles for two reasons. First, the debate about the highly controversial notion of molecular manufacturing introduced by Eric Drexler shaped much of the early discussion. Second, the polarization can be seen as a consequence of uncertainty about nanotechnology compounded by cognitive barriers. A reporter to UNESCO acknowledges that “…Assessments of nanotechnology tend to radically diverge…These radically diverging assessments that have thus far dominated the debate on nanotechnology seem to be due to a lack of common ground.” The “lack of common ground” is not unprecedented in the history of technology, and scientists rightfully fear a new “GMO debacle.”

On November 2, 2004, California voters approved Proposition 69, “The DNA Fingerprint, Unsolved Crime, and Innocence Protection Act” by a margin of approximately 60 to 40 percent. Given the limited amount of information provided to voters during the initiative process, it is unclear how many of the yea-sayers were apprised of the full implications of this measure. Indeed, by voting “yes” on Proposition 69, California has elected to house the most radical and costly state criminal DNA database in the country. This dangerous expansion of California's database poses tremendous threats to civil liberties and social justice while offering little, if anything, by way of increasing the safety of its citizens.

Prior to November 2, California law required the permanent retention of DNA samples from felons convicted of serious, violent crimes.

This article seeks to outline a viewpoint on the study of the legal, ethical and policy considerations raised by DNA tests and databases (from here on, DNA usages). It does not delve into the specifics involved. It outlines a way of thinking that has proven productive elsewhere1 and seems promising in dealing with DNA usages in the United States, but little more. Given that this essay is about a communitarian approach that draws on specific communitarian values, I turn next to briefly present the approach here followed.

Communitarianism is a social philosophy that maintains that society should articulate what is good, and asserts that such articulations are both necessary and legitimate. Communitarianism is often contrasted with classical liberalism, a philosophical position that holds that individuals should formulate their idea of good on their own. Communitarians examine the ways shared conceptions of the good (values) are formed, transmitted, justified, and enforced.

Race and ethnicity are commonly reported variables in biomedical research, but how they were initially determined is often not described and the rationale for analyzing them is often not provided. JAMA improved the reporting of these factors by implementing a policy and procedure for doing so. However, still lacking are careful consideration of what is actually being measured when race/ethnicity is described, consistent terminology, hypothesis-driven justification for analyzing race/ethnicity, and a consistent and generalizable measurement of socioeconomic status. Furthermore, some studies continue to use race/ethnicity as a proxy for genetics. Research into appropriate measures of race/ethnicity and socioeconomic factors, as well as education of researchers regarding issues of race/ethnicity, is necessary to clarify the meaning of race/ethnicity in the biomedical literature.

On August 9, 2001, President George W. Bush delivered a statement that would have a great effect on bioethics policy in the United States. The President stated his belief that human life is a sacred gift from the Creator, expressed his strong opposition to any type of human cloning, and announced a policy of restricting federal funds for embryonic stem cell research to studies on stem cell lines already in existence at the time of his statement. He also announced his intention to create the President's Council on Bioethics (PCB), headed by Leon Kass, “to monitor stem cell research, to recommend appropriate guidelines and regulations, and to consider all of the medical and ethical ramifications of biomedical innovation.” On November 28, 2001, President Bush formally created the PCB, which began its deliberations the following January.

Federal funding of the National Nanotechnology Initiative (NNI) has averaged roughly $1 billion annually for the last three years, from 2004 to 2006. Society is poised to see more realistic nano-scale devices enter the marketplace, along with futuristic depictions of nanotechnology. For this reason, serious thought must be given to the societal impact of nanotechnology.

The scientific validity of racial categories has been the subject of debate among population geneticists, evolutionary biologists, and physical anthropologists for several decades. After World War II, the rejection of eugenics, which had supported sterilization laws and other destructive programs in the United States, generated a compelling critique of the biological basis of race. The classification of human beings into distinct biological “races” is a relatively recent invention propped up by deeply flawed evidence and historically providing the foundation of racist ideology and inequities of power. Social scientists’ conclusion that race is socially constructed was confirmed by genomic studies of human variation, including the Human Genome Project, showing high levels of genetic similarity within the human species. Some scholars came to believe that the science of human genetic diversity would replace race as the preeminent means of grouping people for scientific purposes.

In ethical literature associated with controversies at the beginning and end of human life, there is often a two-part structure: first, basic facts about the topic are presented in a more or less descriptive format, then there is the ethics or policy.

Forensic data banks contain biological samples and DNA extracts as well as computerized databases of coded DNA profiles of convicted offenders, arrestees and crime scene samples. When used for investigative and law enforcement purposes, DNA data banks have been successful in providing key investigative leads in hundreds of criminal investigations. A number of these crimes would never have been resolved without use of such data banks. In addition, in some limited number of investigations, the exclusion of known suspects whose DNA profiles are known to be in an offender database can save valuable investigative time.

Despite the above benefits, in hundreds of cases DNA samples are never collected and administrative and laboratory logjams delay prompt database searches. Furthermore, hundreds of DNA database matches (hits) languish, without any followup by law enforcement or prosecutors. These prevent or delay DNA matches and therefore can leave the public in grave risk of potential harm from recidivistic offenders who otherwise could have been apprehended and convicted if the process functioned more effectively.

Nanotechnology is a subject about which we know less than we should, but probably more than we think we do at first glance. Like Defense Secretary Donald Rumsfeld's “known unknowns,” we have learned enough to know what we should be concerned with. Glimmers of risk cropped up recently when German authorities recalled a bathroom cleansing product, “MagicNano,” that purported to contain nanosized particles (NSPs) and was on the market for only three days. More than one hundred people suffered severe respiratory problems – six of whom were hospitalized with pulmonary edema. Although a subsequent analysis of MagicNano found that the nanoliquid ingredient morphed in the production into “supersized” (not nanosized) particles, the recall nonetheless turned a white hot spotlight on the risk of NSPs. Latching onto the risks posed to workers producing materials using nanotechnology, the Washington Post has labeled nanotechnology a “seat-of-thepants occupational health experiment.”

Current methods of forensic DNA profiling (known also as DNA fingerprinting and DNA typing), based on Polymerase Chain Reaction (PCR) amplifications of a varying number of Short Tandem Repeat (STR) loci found at different locations on the human genome, are regularly described as constituting the “gold standard for identification” in contemporary society. At a time when criminal justice systems in Europe and North America increasingly seek to utilize the epistemic authority of a variety of sciences in support of the apprehension and prosecution of suspects and offenders, genetic science and recombinant DNA technology are often singled out for particular approbation. Indeed, the development and application of DNA profiling has been widely described as the “greatest breakthrough in forensic science since fingerprinting.”

There is much we do not know about nanotechnology. Despite its tremendous promise, nanotechnology today is mostly forecast and fervent hope. Predictions that spending on nanotechnology will increase from current levels of $13 billion to more than $1 trillion by 2015 are no more than that – simply predictions. Hopes that nanotechnology will be an essential part of solving the globe's energy, food, and water problems should be tempered by recalling a century of revolutionary technologies that failed to live up to their early promise such as nuclear energy, supersonic airplanes, or gene therapy. Many other questions continue to nip at nanotechnology's heels, not the least of which are debates about what is and is not technically feasible. Despite these uncertainties, we can have complete confidence in one aspect of nanotechnology's future – it will be subject to a host of regulations.

Protecting the public's health has recently regained prominence in political and public discussions. Threats of bioterrorism following September 11, 2001 and the deliberate dissemination of anthrax later that fall, the reemergence of novel or resurgent infectious diseases, (such as the West Nile Virus, SARS, influenza, avian flu) and rapid increases in diseases associated with sedentary lifestyles, poor diets, and smoking (e.g., heart disease, diabetes, cancer) have all raised the profile of public health. The U.S. government has responded with increased funding, reorganization, and new policies for the population's health, safety, and security. Politicians and the public more clearly understand the importance of law in improving the public's health. Recognizing that many public health laws have not been meaningfully reformed in decades, law- and policy-makers and public health practitioners have focused on the legal foundations for public health. Laws provide the mission, functions, and powers of public health agencies, set standards for their (and their partners’) actions, and safeguard individual rights.

We have previously addressed the use of race in health care generally. Subsequent developments have made the issue even more pointed. Given the recent Food and Drug Administration (FDA) approval of BiDil as a result of a clinical trial limited to participants identifying themselves as African-American, this Symposium could not be more timely as an effort to further advance the dialogue on the issue of race in medical research. While this dialogue has informed our own analysis, we believe our distinctive contribution concerns the extent to which the law does and should constrain such use of race. Even in legal academic circles – somewhat notorious for considering problems of little practical significance – the issue has been given little thought. This piece, therefore, attempts to analyze extant legal regimes against the backdrop of medical and scientific developments.