Biolaw 3.0: Law at the Frontiers of Biology
Let the leading experts put things into perspective
November 6, 2009, 9 am to 4 pm
KU School of Law, 1535 W. 15th Street, Lawrence, KS
Keynote Address: Roger M. Milgrim, author of treatises "Milgrim on Trade Secrets" and "Milgrim on Licensing." The law school has applied for 6 hours of CLE credit in Kansas and Missouri. Admission is free, and no registration is required. Find a full list of speakers and papers below.
Agenda
9 a.m.
Professor Andrew W. Torrance
“Biology as the Future of Law”
University of Kansas School of Law
9:30 a.m.
Keynote Address: Roger M. Milgrim
"Trade Secrets: The Flexible IP Right That Goes a Long Way in Biotechnology"
Author of the treatises "Milgrim on Trade Secrets" and "Milgrim on Licensing"
10:30 a.m.
Professor Radhika Rao
“Property, Privacy, and Other Legal Constructions of the Embryo”
Hastings Law School
11:30 a.m.
Dean Jim Chen
"Dr. Suess and 'The Face of the Earth': Three Biolaw Bedtime Stories"
["Dr. Suess und 'Das Antlitz der Erde': Drei Gutenachtgeschichten über Biorecht"]
Louisville Law School
12:30 p.m.
Intermission for lunch
1:30 p.m.
Harvard Fellow David Singh Grewal
“Free Culture in Biotech?: An Experiment in Synthetic Biology without Intellectual Property”
Harvard University
2:30 p.m.
Professor Paul Rubin
"The Evolution of Law: Efficiency or Inefficiency"
Emory University
3:30 p.m.
Panel: Crissa Cook, Hovey Williams LLP, and Lana Knedlik, Stinson Morrison Hecker LLP
“The Cutting Edge of Biotechnology Patent Law”
For more information, call (785) 864-4550.
Abstracts
“Property, Privacy, and Other Legal Constructions of the Embryo”
Radhika Rao, Hastings Law School
The legal status of the human embryo is hotly contested. Sometimes the embryo is characterized as an appendage that is part of the woman’s body, while at other times the embryo is classified as an object of property, the subject of conflicting rights, or even a full-fledged person with rights and interests of its own. When the embryo is within a woman’s body, the attribution of legal rights would infringe upon the woman’s own rights to bodily autonomy and sex equality. Thus the embryo must be subsumed within the woman’s privacy as long as it remains inside her body. Once the embryo emerges from the womb, however, the woman’s rights are no longer uniquely at stake. At that point, her privacy ends and the government may intervene. The government is free to protect the embryo as a person, to classify it as the property of its progenitors, or to categorize it as an intermediate entity that merits “special respect” because of its potential for life. The government may freely choose between these legal frameworks as long as it does not impinge upon the rights of others.
This paper will explore various legal constructions of the embryo and examine the factors that shape its legal status, including the location of the embryo, its stage of development, the purpose for which it was created, and the mode of its creation. What qualifies as a human embryo? Does it require the joinder of sperm and egg, or does the concept also extend to a parthenote — an unfertilized egg that has been jolted into dividing; a clone — an egg that has had its nucleus removed and replaced by an adult somatic cell; or even a human-animal hybrid — such as an animal egg that has had its nucleus removed and replaced by a human somatic cell? An embryo’s legal position may also depend upon the motives underlying its creation — was it created with reproductive intent or for the express purpose of conducting research? Beyond the method and purpose of creation, the developmental stage of the embryo defines its standing: the law may accord different treatment to an embryo at fertilization; upon implantation in the womb; after formation of the primitive streak, which occurs around 14 days after fertilization; or at the point of viability, which occurs between 20 and 24 weeks of pregnancy — when the fetus gains the capacity for survival outside the woman’s womb. Finally, legal status often turns upon the location of the embryo – whether it is situated inside or outside a woman’s body. I propose that the legal status of the embryo rests not only upon these important criteria — the where, when, why, and how — but also upon the context in which the question of embryo status is posed and the consequences of the embryo’s status for others.
“Free Culture in Biotech?: An Experiment in Synthetic Biology without Intellectual Property”
David Singh Grewal, Harvard University
Biotechnology has generally proven to be an area resistant to the movement of "free culture," as it is controlled by dominant intellectual property regimes and subject to expensive litigation. Is there a way to bring "free culture" into biotechnology? This talk will explore one recent effort to do so: the creation of the Biobricks Public Agreement, a legal mechanism meant to assist the development of an open, shared platform in the emerging area of synthetic biology. Unlike in other domains of "free culture," the innovations in biotechnology are governed by patent law, not copyright. This fact complicates the task of either using existing intellectual property
laws as a hook ("copyleft") or escaping from them altogether. This talk will provide a theoretical overview of the major issues and then report in more detail on the recent effort to bring a culture of sharing into biotech.
"The Evolution of Law: Efficiency or Inefficiency"
Professor Paul Rubin, Emory University
Evolutionary models of law were initially aimed at explaining the alleged efficiency of the common law. However, it is fair to say that the models have failed in this endeavor — perhaps because the law is not as efficient as initially thought. Nonetheless, these models (with some revisions) can explain the shape of the law in many contexts. The models are strictly evolutionary, in that the process of change is driven by random variation and directional selection. However, it is also possible for interested agents to plan the direction of change, which leads to faster evolution in a predictable direction.
Speaker bios
Radhika Rao is professor of law at the University of California, Hastings College of the Law in San Francisco, and served as Fulbright Distinguished Professor, holding the Trento Chair in Law at the University of Trento, Italy, from March to July 2008. After receiving her A.B. in physics and chemistry from Harvard College and graduating magna cum laude from Harvard Law School, she clerked for Judge Richard Cudahy at the U.S. Court of Appeals for the Seventh Circuit and Justices Harry A. Blackmun and Thurgood Marshall at the U.S. Supreme Court. Rao teaches and writes in the areas of biolaw, constitutional law, comparative constitutional law, and property. She has been a visiting professor at Brooklyn Law School, the University of Michigan Law School, and the University of Trento, Italy. Professor Rao has written articles on abortion, assisted reproduction, cloning, stem cell research, genetics, gene patenting, and property vs. privacy rights in the human body, some of which have been translated into Italian and Chinese. She was a member of the California Advisory Committee on Human Cloning, and currently serves as a member of the California Human Embryonic Stem Cell Research Advisory Committee.
