Professor Peter Huang teaches the seminar Law, Science and Technology that explores contemporary topics in law’s intersection with science and technology including developments in biotechnology, information technology, the Internet, and financial engineering.  His article “Herd Behavior in Designer Genes” was published in 34 Wake Forest Law Review 34 (1999) and his forthcoming article “A Normative Analysis of New Financially Engineered Derivatives” will be published in the Southern  California Law Review in 2000.

If there are going to be attempts to regulate technological innovation, what you need is something like the World Trade Organization – some kind of meeting of countries where they would adopt some form of uniform standards. But even if they did, that may not be the answer because most people think that when there is going to be some kind of global agreement it’s going to be the weakest form. In other words, if you want all the countries to adopt it then it might be the result of a process known in the U.S. corporate law context as a race to the bottom. If you carry that metaphor over to both the Internet and to the genetic technology context, what may emerge is that it’s not clear that we want the world to have identical laws because we don’t know what the right laws should be. But by having different countries experimenting with different legal rules and institutions regarding either pharmaceutical companies or Internet startups the laws will get better. If it’s a success, we’ll copy it. If it doesn’t work the market will respond accordingly. We should not rush to regulate but wait and see what other countries are doing well in terms of attracting investors, startups and research and imitate that. In the end, we should avoid having our legal system drive away the thing that we want by regulating it in the name of some kind of quality control. 

Frankenstein or Frankenfruit?

Considering the future of technology, one of the major concerns is in genetics. Genetic engineering is already here – you can’t keep parents from saying they want their children to have piano lessons or to have better math skills. But where do we draw a line between disease and disability? If everyone is thin and beautiful, then maybe being fat and ugly might be considered a disease and something that some think we should get rid of. In some sense, disease sounds easier to define than it is. 

In the United States, how much Americans care about their food being genetically engineered is not a critical issue. A lot of Europeans seem to be much more up in arms about this issue, so there was some pressure to pass some laws. The reasoning in the U.S was if we accepted that genetically engineered food is here to stay, then we should have some quality control and full disclosure so people know what they’re buying.

The SEC’s approach to investors in the securities markets is that you should make yourself fully informed and then it’s up to you – you choose, you win or lose. But the view that Clinton had is like the view of the Food & Drug Administration, slightly paternalistic. We don’t trust people’s cognitive skills, judgment, or information processing capabilities when it comes to human cloning or to drugs. So we think we won’t let you have an alleged cure for AIDS or a cancer drug that, in our judgment, has not gone through enough rounds of testing.

The government holds two views: for high tech we should let the markets decide and self-regulation will be inherent in the process of keeping up with the markets. The other view, in terms of genetic engineering and biotechnological innovation, is that we can’t let you decide because we don’t trust your judgment. We think we know better than you do what’s in your best interest. In this country we don’t want a lot of regulation in general especially in today’s political climate that has a very deregulatory attitude. Our country tends to respect individual choices.


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