(Posted 4/11/2005)
This memo assignment is designed to reinforce material discussed in class and to help you exercise writing skills in the area of regulatory policy. You must complete at least 3 of the 4 memos assigned during the term; you may submit all four memos if you wish. These assignments will not be graded, but will be marked "check," "check-plus," or "check-minus," generally with brief comments. Superior or delinquent performance on the memos will count toward your grade in the same way as contributions to class discussion, but the main way in which the memos influence grades is by providing practice in writing short essays of the same format that will be used on the final exam.
Please submit your memo via e-mail to my assistant, Joseph McGrath, at jmcgra@law.columbia.edu. As before, please give your memo a filename that includes your last name, and please make sure to include your name in the memo text, or you may not receive credit for timely completion of the assignment. [Note as of 4/18/05: since my assistant will be out of town during the later part of this week, please e-mail your memos to me at ak472@columbia.edu.]
As before, I will presume unless you tell me otherwise in your cover message that if we find your essay to be among the best we receive, I have your permission to post it [with your name removed] as part of my feedback to the class
This assignment is due on Wednesday, April 20, at 5 pm. Extensions will not be granted absent compelling circumstances. You should not do any additional research in preparing your analysis beyond consulting the sources linked below, and you should limit the time you spend on this assignment to not more than four hours.
On February 21 of this year, the US Senate passed S. 306, the Genetic Information Nondiscrimination Act of 2005, by a vote of 98-0. This bill, if enacted into law, would bar both health insurers and employers from discriminating against persons with a genetic predisposition to disease. It would cover public and private health plans, employers, employment agencies, labor organizations and training programs.
Under the bill, insurers could not exclude people from coverage or charge them higher rates because of a genetic risk, and could not require their customers to take genetic tests. Employers would be barred from basing hiring, firing, promotion or compensation decisions on genetic information.
Proponents of the bill have been trying to get legislation enacted on genetic testing for several years, without success. The Senate passed a nearly identical bill in 2003, but it stalled in the House of Representatives, which took no action on the matter. This year’s bill has been endorsed by the White House, but is opposed by some Republican House leaders and business lobbyists. Senate Republicans, however, including Senator Mike Enzi (R-Wyo.), chairman of the Senate Health, Education, Labor, and Pensions Committee, are among the major supporters of the bill.
In remarks on the Senate floor, Senator Enzi stated:
We have before us today an important bill that will address the fault in the system and correct it. It was carefully crafted to alleviate the problems faced by people like those I have mentioned. It was designed to calm the fears of those who are hesitant to subject themselves to genetic tests, knowing that what safeguards are in place may prove to be inadequate. It is a bill to restore their confidence in the system and their faith that the process is fair.
Only if we pass this legislation now will we truly be able to encourage the scientific progress in this field. The science of genetics may well hold our best hope for combating many of our worst afflictions. However, genetics, like the rest of science, will progress best when ideas and information are freely exchanged.
As a former small businessman, I am sensitive to the concerns raised by some in the business community that this legislation might impose new liabilities on employers. I am confident, however, that after they become familiar with the provisions of this bill, such critics will see that it has been carefully written such that its enactment will reduce the risk that an employer will ever be dragged into court to face a claim of genetic discrimination. . . .
Simply put, neither will employees become victims of discrimination nor will employers be sued unreasonably. Why? Because this bill sets a standard for conduct that is easy to understand and easy to follow. We are far better off setting the rules of the road clearly and ``up front,'' rather than allowing them to be set piecemeal through litigation.
We also must act now to ensure legal uniformity and consistency nationwide. About half the States today have laws governing genetic information. However, these laws differ significantly from one another and do not always fully address the problem.Once this legislation is signed into law we will have a clear, concise and uniform policy on genetic information that will make clear what is and is not an acceptable use for genetic information. . . .
If we pass this legislation, and pass it we must, we will have taken a great step forward and ensured that the initial breakthroughs of Dr. Watson and Dr. Crick, and the more recent ones by the National Genome Project, will continue to reap benefits for generations to come.
You are a senior staffer for the House Education and the Workforce Committee. Your committee has reviewed the genetic testing issue in recent years and is likely to claim jurisdiction over the Senate bill, although at least two other committees — Ways & Means and Energy & Commerce — have also indicated an interest in making similar claims. Your committee chair, Rep. John Boehner (R-Ohio), is on record as indicating support for the general principle of genetic non-discrimination, but has also advocated a deliberate approach to the problem and cautioned against undue haste in creating new employer mandates.
You have been asked to write a memo for the members of the Education and the Workforce Committee that analyzes possible approaches that the committee could take to the Senate bill. You were chosen for this task because you have just returned from a four-day conference on the topic of "Reinventing Regulation," in which participants discussed the merits of various institutional innovations in the regulatory field, including flexible mandates, markets in compliance duties, devolution of regulatory authority to state and local government, regulatory negotiation, rolling-rule regimes, and the like; and some of the more moderate members of the committee are interested in whether your participation in this conference has given you any ideas about whether and how it might be possible to break the political logjam over the genetic testing issue.
You have 500 words and no more than two pages in which to write the memo. You may use any format you wish, but keep in mind that the committee members are very busy and expect to have the critical issues clearly laid out for them.
For additional background material, you may wish to consult the following sources: