ANRV327-LS03-15 ARI 23 September 2007 17:2

The Socio-Legal
Implications of the New
Biotechnologies
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org
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Alain Pottage
Law Department, London School of Economics, London WC2A 2AE,
United Kingdom; email: [email protected]

Annu. Rev. Law Soc. Sci. 2007. 3:321–44 Key Words

First published online as a Review in Advance on instrumentality, legal form, biopower, subjectivity
June 5, 2007

The Annual Review of Law and Social Science is Abstract

online at http://lawsocsci.annualreviews.org
This review explores a number of legal-theoretical studies of the
This article’s doi: encounter between law and biotechnology. Rather than attempt an
10.1146/annurev.lawsocsci.3.081806.112856
extensive compilation of scholarship, the review focuses on those
Copyright  c 2007 by Annual Reviews. studies that have addressed the effects that biotechnologies (under-
All rights reserved
stood in the broadest sense) have had on the composition of legal
1550-3585/07/1201-0321$20.00 form. Although the relation between law and biotechnology is often
seen as being one in which law is applied to biotechnology as a kind
of prohibitory limit or regulatory force, this review explores some of
the ways in which biotechnological programs have challenged and
eroded the conceptual form of law. The hypothesis is that there is an
antagonistic relation between law and biotechnology and that this
antagonism is brought out in scholarship relating to the key areas in
which the encounter between law and biotechnology is played out:
intellectual property, governance and regulation, and those domains
of law that have incorporated technologies of DNA fingerprinting.

321
 ANRV327-LS03-15 ARI 23 September 2007 17:2

INTRODUCTION tences embodied in biotechnologies. Techni-

cal competences are conditioned by the forms
Biotechnologies evade definition. As compos-
of knowledge in which they are reflected:
ites of scientific knowledge, laboratory tech-
“Biotechnology has become an arena in which
nique, economic strategy, legal form, and po-
society speaks back and in which the public
litical engagement, they resist identification
takes an interest in experts’ agendas, including
in terms of any singular technique or effect.
their research agendas. Of course, scientists
For example, to reduce biotechnologies to the
are not the only experts in the field; biotech-
basic technique of recombinant DNA tech-
nology is making us into people who listen
nology as it was developed in 1973 would be
to ethicists and philosophers and lawyers as
to miss out on the complexities that matter to
well” (Strathern 2006, pp. 17–18). Law and
theoretical analysis. Since its invention, gene
biotechnology are linked by a feedback loop
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

splicing has been expanded into a generalized

of this sort. So although there have been
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figure of technological mastery. Technically,

various legal or administrative definitions of
or practically, recombinant DNA technology
biotechnology—which are typically attached
has become the instrument of applications
to specific modes of recombinant DNA tech-
that have dissolved boundaries between pri-
nology or specific conceptions of the gene
vate and public science and that have evolved
(see, notably, European Union 2001, Annex
new institutional and economic contexts for
1 A)—these definitions are themselves im-
the life sciences. The enhancement and ex-
mersed in the economic, scientific, or politi-
pansion of gene splicing technology is at-
cal strategies that constitute biotechnologies.
tributable in part to the development of com-
From a legal-theoretical perspective, formal
plementary technologies such as polymerase
legal categorizations are themselves unstable
chain reaction (Rabinow 1996), which have
symptoms of complexity.
rendered molecular text even more tractable.
Although socialization by means of cul-
More recently, however, the very composi-
tural commentary is essential to what biotech-
tion of molecular text has been transformed
nologies are, the difference between tech-
by the shift from in vitro manipulation to in
nique and commentary becomes problematic
silico modeling. Biotechnologies are increas-
in cases in which biotechnology becomes fic-
ingly becoming information sciences. As dig-
tion science, namely, a projected application
ital code becomes the common medium of a
that is considered to be scientifically plausible
host of overlapping and coevolving fields—for
and technologically feasible when subjected to
example, bioinformatics, pharmacogenomics,
further research and investment (Baldi 2001,
population genetics, forensic science, and syn-
p. 2). These fictions are often made real by
thetic biology—theoretical analysis has to
the momentum of economic process; spec-
negotiate the complexity of a situation in
ulative biotechnological projects are embod-
which a singular phenomenon—the gene—is
ied in corporate forms that serve as vehicles
diffracted into multiple existences (for philo-
for the attraction of venture capital and as le-
sophical commentary, see Müller-Wille &
gal enclosures for such proprietary technolo-
Rheinberger 2004).
gies as might eventuate from research. The
As part of this process of expansion, gene
role of law—and patent law in particular—
splicing has become a uniquely compelling
in reinforcing these fictions has itself become
cultural metaphor. The technical ability to
a productive theme in research (see Waldby
cut and paste molecular texts has been exten-
2002, Waldby & Mitchell 2006). This kind
sively represented in diverse social commen-
of fiction science (particularly in the case of
taries on technological authorship, and these
biomedicine) is driven by a mode of specula-
representations have interesting feedback ef-
tive determinism; scientists imagine that they
fects on the technical or instrumental compe-
already have a functional specification of the

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biological entity or process they are trying to nology has attracted the interest of anthro-
find; their doubts are as to the means of attain- pologists, who have been engaged by the cul-
ing it. But there is another species of fiction tural tropes that are elicited by the tension be-
science that arises when technique is overde- tween legal form and biotechnological agency
termined by commentary. For example, in the (see, notably, Strathern 1999, 2006). Similarly,
case of Dolly the sheep, the first successful at- the peculiar configuration of technical, legal,
tempt to clone a mammal by means of nuclear medical, and philosophical knowledge that
transfer technology marked the emergence of composes bioethics has renewed normative
society into what the sheep’s engineers called legal theory (see Beyleveld & Brownsword
the age of biological control (see, generally, 2004). How should these diverse theoreti-
Franklin 2007). In commentary, this single cal perspectives on law and biotechnology be
technique was abstracted into a spectrum of compiled?
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

potential applications, ranging from the use Rather than attempt an extensive catalog
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of animals as living pharmaceutical factories of legal-theoretical perspectives on biotech-

to variations on the theme of human cloning. nology, it might be more productive to begin
Different modes of analysis fix the potential- with a premise that is common to the most
ities of the technology in different ways; are innovative and interesting scholarship in the
some of these interpretations more realistic field: How do biotechnologies problematize
than others? the structure of legal form? In what sense do
The multiple and diffracted character of biotechnological instrumentalities undo legal
biotechnologies is reflected in the breadth of categories? According to Habermas, the car-
legal-theoretical commentary. To some ex- dinal vice of biotechnologies is that they col-
tent, these diverse approaches are contained lapse the traditional, categorical distinction
by established lines of disciplinary division; between the made and the grown, or between
scholars address the implications of biotech- “what is manufactured and what has come to
nologies for the particular subdisciplines of be by nature” (Habermas 2003, p. 46). Al-
evidence and proof, family law, intellectual though the genetic constitution of domesti-
property, governance and regulation, or in- cated species has been profoundly modified by
ternational trade. But biotechnologies have centuries of artificial selection, these methods
had interesting and generalized effects on of breeding consisted in an essentially thera-
the schematic composition of all these legal- peutic mode of intervention, premised on “a
theoretical approaches. Because the legal in- clinical mode of adjustment to the inherent
terpretation of biotechnology is just one of dynamic of nature” (Habermas 2003, p. 46).
many interlinked representations, legal schol- Breeders merely inflected the natural process
arship has been drawn into conversation with of growth and evolution, but biotechnologies
unfamiliar theoretical perspectives such as sci- reduce living tissues and organisms to inert
ence studies and into renewed dialogue with components that can be engineered and pro-
established conversation partners such as phi- grammed: “[W]hat hitherto was ‘given’ as or-
losophy, anthropology, and economic history. ganic nature, and could at most be ‘bred’,
For example, scholars in the fields of science now shifts to the realm of artifacts and their
studies and legal theory exchange concepts production” (Habermas 2003, p. 12). And al-
and methods in their respective treatments of though the objectifying, mechanistic vision
the question of intellectual property rights in of the world is as old as the program of
biotechnology (see Hilgartner 1998; Pottage modern science, biotechnologies no longer
2004, 2006b), the regulation of laboratory encounter the organic world as an opaque,
work (Gottweis 1998), or the role of foren- resistant medium governed by immutable
sic science in the courtroom (Lynch 2003). At rules. When everything can be made or
the same time, law’s encounter with biotech- remade, there is no world of external

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 ANRV327-LS03-15 ARI 23 September 2007 17:2

regularities at all, only a world that exists lenge. First, if biotechnology is (as Haber-
through human action or in default of human mas proposes) a figure of radical instrumen-
action. tality, then it is so radically instrumental that
Habermas’s ethical rendering of biotech- it deconstructs the logical form of instrumen-
nologies is highly reductive, but philosophical tality. If anything and everything can be in-
abstraction has a virtue. It gets at a question strumentalized so that nothing has an irre-
that haunts many legal-theoretical approaches ducible nature, then all existences are condi-
to biotechnology: “Do we still want to un- tional on intervention and ultimately on the
derstand ourselves as normative creatures— perception or observation that informs (po-
indeed, what role should morality and law tential) intervention. And in a world in which
play in the regulation of social interaction there is no common or irreducible ontol-
that could as well get rearranged in norm- ogy, there are as many informing perspectives
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free functionalist terms?” (Habermas 2003, as there are observers (see Luhmann 1995).
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p. 15). Biotechnology might be construed as Patterns of causation or instrumentality are

a strange correlate or double of law. By ex- referable to observational perspective, so that
tending the reach of human manufactures into both means and ends become effects of obser-
the texture of life itself, biotechnologies do vation. Second, biotechnologies problematize
more than loosen the ontological consistency instrumental logic because, even as they seek
of the grown; they also reveal the sense in to reduce living processes to programmable
which the grown was produced and stabilized units, they encounter the fact that biological
by legal norms and institutions. Historically, processes are not themselves ordered by a lin-
the very categories that biotechnologies ren- ear causal logic; rather, they are emergent,
der contingent—means/ends, persons/things, epigenetic, or self-organizing (see Pottage
manufactures/organisms—were produced by 2004). In one sense there is too much instru-
the layering into law of enduring cultural con- mentality in biotechnology; in another there
ceptions of human life and human action. Al- is too little. The effects are felt in the ar-
though it would be an exaggeration to say that chitecture of the legal distinctions between
these figures of the grown were legal arti- persons and things, intention and material-
facts, it is certainly true that legal form was ity, or knowledge and object. By deconstruct-
thoroughly implicated in the texture of hu- ing these traditional distinctions, biotech-
man nature. Understandings of genealogical nology undoes the instrumentalist logic that
relationship, bodily integrity, and human life they articulate. One way of surveying legal-
span were all closely informed by legal sci- theoretical studies of law and biotechnology
ence (for a historical analysis, see Cayla & is to explore how this corrosion of legal form
Thomas 2002). By making these aspects of is reflected in scholarship in the fields of intel-
human nature seem contingent and revisable, lectual property, governance and regulation,
biotechnologies directly challenge law’s his- and family and identity.
torical claim to be the sovereign creator of
nature. In that sense, the distinction between
the grown and the made articulates a tension PROPERTY
between two ways of making nature, or be- The distinction between the made and the
tween two forms of instrumentality. grown structures the conceptual architecture
Ironically, and precisely because they of the modern patent system. The doctrinal
threaten to instrumentalize the world so thor- concept of invention as it has evolved since
oughly, biotechnologies challenge the instru- the early nineteenth century is thoroughly
mentalist understanding of law as a means to infused with the logic of making or manu-
an end (on this understanding, see especially facturing. Indeed, nowhere in legal doctrine
Riles 2005). There are two bases to this chal- is that logic more systematically developed

324 Pottage
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than in the figure of the invention. The es- p. 140). In Europe, by contrast, legal form
sential characteristics of patentable ingenuity did not have these effects of normalization or
express an implicit theory of making: Ingenu- domestication. Given a quite different config-
ity is original—or originating—in the sense uration of political interest and institutional
that it entirely controls the form, structure, structures, legal form became the medium
and articulation of the artifacts in which it is or expression of competing normative in-
embodied; ingenuity can be reduced to textual terpretations of biotechnology. Political
form without losing any of its genetic potency campaigns against the patenting of genetic
(see Biagioli 2006); ingenuity forms a design inventions were able to exploit provisions in
whose exemplars can be reproduced in mul- the European Patent Convention that allow
tiple copies by means of a process of indus- parties other than claimants to inventorship
trial manufacture. From the early twentieth to oppose the granting of a patent on the
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century onwards, this figure of invention was grounds of morality or ordre public. This form
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confronted with biological inventions, which of opposition procedure allowed political par-
could not be described, explained, or repro- ties and nongovernmental organizations to
duced in the same manner as machines or turn the texture of patent law doctrine into a
mechanically reproduced artifacts. In a num- matter of sustained political interest. And the
ber cases, judges drew on the distinction be- extensive debate surrounding the European
tween discovery and invention, or between Biotechnology Directive of 1998 meant that
products of nature and manufactures, in an the texture of doctrine became even more
attempt to draw the distinction between the thoroughly permeable to legislative debate,
made and the grown. These unsystematic at- national plebiscites, and expert evaluation
tempts were finally, and somewhat abruptly, (see, generally, European Union 1998).
brought to an end by the decision of the U.S. Unsurprisingly, legal-theoretical scholarship
Supreme Court in Diamond v. Chakrabarty is sensitive to these variations in the mode
(1980), which cleared the way for the routine of acculturation of biotechnologies, so that
patenting of biotechnological inventions by different political and institutional landscapes
holding that invention could encompass the are reflected in styles of commentary.
grown as well as the made. In Chakrabarty, Scholarship in the United States has
the essential doctrinal question was whether a tended to approach the decision in
genetically engineered microorganism could Chakrabarty from the perspective of a
qualify as a manufacture in the sense of the critique of economic power (see, generally,
U.S. patent statute. The answer—that “any- Thackeray 1998). Patent doctrine, as inter-
thing under the sun that is novel and made by preted and developed by judges, is theorized
man is patentable”—affirmed the novelty of as a more or less responsive instrument
an invention, rather than its mode of origina- of the economic interest. The refusal of
tion or reproduction, as the essential qualifi- the Supreme Court in Chakrabarty to the
cation for patentability. A new organism was deploy the distinction between discovery
every bit as novel as a new machine. and invention as a limit on patentability is
In U.S. patent law, this maneuver ef- seen as the outcome of strategies that had
fectively closed off fundamental doctrinal been pursued by the life science industries
questions about the patentability of biological since well before the era of biotechnological
and biotechnological inventions. Indeed, the invention (see Kevles 1998). This form of
broader effect of the decision in Chakrabarty economic critique is not exclusive to the
was “to normalize genetic engineering by United States (see, notably, Dutfield 2003,
providing forms and methods of discourse Drahos & Braithwaite 2002), but the mode of
that made the applications of the technique politicization of biotechnologies in Europe
seem amenable to control” ( Jasanoff 1995, has given rise to a style of scholarship that

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is rare in the United States. Because the ends patent law should serve—which biotech-
European Patent Convention treats morality nological techniques or artifacts should be
as an effective criterion of patentability, cer- patented and which should not?—these cri-
tain strands of scholarship in Europe address tiques ask a second-order question: Is law re-
the tension between discovery and invention ally just a means to an end? They argue that
not as an index to economic power but as a to treat law as a mere means, as an instrument
symptom of controversy as to the meaning of for the execution of any manner of end, and
morality in the age of biotechnology. In one more precisely as a mute medium for the de-
approach, the question is referred to practical ployment of biotechnological projects, would
reasoning: What normative content should be to denature legal form. Supiot (2007) ar-
be ascribed to the notion of morality as it is gues that law, and more precisely the legal
deployed in the context of patent law (see, for form of the person, is both the condition and
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

example, Beyleveld & Brownsword 2004)? the expression of a particular kind of rational
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Other perspectives are more self-consciously or normative architecture. This is an effect

interventionist. For example, in France legal of historical momentum rather than natural
theory has become a resource for political law. As a repository of sedimented traditions,
opposition to what are seen as the socially legal form has acquired the anthropological
corrosive effects of biotechnology (see Fabre- function of conditioning and delimiting in-
Magnan & Moullier 2004, Supiot 2007). dividual existences; legal institutions inscribe
Although these interventionist arguments each individual into a logic of kinship, sex-
often resemble political critique more than ual division, and chronology in such a way as
theoretical analysis, they are interesting to deny fantasies of individual self-creation
because they shift attention to the form of or self-sovereignty. These are precisely the
patent law rather than its instrumental uses. institutional coordinates that biotechnology
The argument emerges from the doctri- threatens to dissolve.
nal distinction between discovery and inven- In a sense, it is already too late for this
tion. One of the more persistent arguments mode of critique; the valorization of legal tra-
against the moral validity of biotechnology dition is now necessarily “a political act of self-
patents is that they illegitimately treat natu- referential moral action” (Habermas 2003,
ral products as man-made artifacts, thereby p. 26), and a tradition that is self-consciously
undoing the prestige of the grown and sanc- deployed rather than silently effective is no
tioning the appropriation of resources that longer a tradition. But Supiot’s argument ex-
should remain common or uncommodified. poses a question that is usually overlooked
When the invention in question is a human in analyses of biotechnological invention; it
gene sequence, the emphasis of the argument reveals (in polemical terms) the terms of a
shifts to human dignity: To grant a private more general corrosion of legal form. Pre-
monopoly over a component of the human cisely because it is the purest doctrinal dis-
body is to subvert the peculiar form of dig- course of instrumentality, patent law expresses
nity that post-Enlightenment philosophy at- the double bind described in the introduction
tributed to human beings as ends in them- to this review. On one hand, patent law is pro-
selves (see Beyleveld & Brownsword 1998, grammed to construe technological interven-
Edelman 1999). The theoretical import of tions in instrumentalist terms, which makes
these objections becomes clearer if they are it seem the ideal servant of biotechnology.
rephrased in more abstract terms; in effect, On the other hand, because it construes tech-
the argument is that law should not be treated nology in instrumental terms (inventive ideas
as an instrument of instrumentalization. This imprint or inscribe useful human designs in
last phrase is not an empty tautology. Rather matter), patent law is vulnerable to the decon-
than ask the first-order question of what struction of instrumentalist logic by biological

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process. Again, there is at once too much in- that to reproduce knowingly a plant contain-
strumentality and too little. This might be ing a patented gene construct was to infringe
conceived as a point at which patent law it- the patent. Although the patent encompassed
self becomes especially interesting as a tech- only the gene construct rather than the whole
nology that reproduces the made (invention) plant, by reproducing plants containing the
and the grown (nature) (Strathern 2001). But gene construct the defendant had made unau-
returning to the theme of legal form, patent thorized use of the patented invention: “[I]f
law still works with a theory of instrumental- an infringing use were alleged in building a
ity that is premised on the distinction between structure with patented Lego blocks, it would
the grown and the made. Political critique re- be no bar to a finding of infringement that
sponds to the dissolution of those terms by only the blocks were patented and not the en-
reviving them as tradition, whereas theoreti- tire structure” (Monsanto v. Schmeiser 2004, at
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cal critique exposes the inability of patent law paragraph 42).

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to fabricate coherent patent rights in relation What the Harvard and Schmeiser decisions
to emergent biological process. Both modes leave unresolved is how or where to draw the
of critique reveal a crisis of legal form; what line between the grown and the made. Unlike
would be required is not just cognitive adjust- the Chakrabarty decision, the two Canadian
ment on the part of patent doctrine, but rather decisions open the question of whether an or-
a reinvention of the tradition of patent law in ganism can be a manufacture or composition
such a way as to enfranchise it from its com- of matter into the broader question of the
mitment to the notion that there are two kinds normative principles that (should) inform the
of kind in the world: the grown and the made. structure of patent law and that might con-
Two widely publicized Canadian cases il- dition its instrumental uses. Both decisions
lustrate the point. In Harvard v. Commis- deal with inventions that are hybrid in the
sioner of Patents (2002) before the Canadian sense that they belong simultaneously to two
Supreme Court, the question was almost ex- distinct orders of being, or to two kinds of
actly that addressed by the U.S. Supreme kind. The distinction between these two or-
Court in Chakrabarty: Was a genetically en- ders of being is made according to their re-
gineered organism—in this case a mouse—a spective genetic principles, biological hered-
manufacture or a composition of matter? Un- ity in one case and inventive design in the
like its counterpart in the United States, the other. Only the latter accords with the in-
Canadian court started with the distinction strumentalist logic of patent law, which ex-
between the made and the grown and held that pects that inventive ideas should be entirely
because representatives of the patented vari- reducible to writing. In both Harvard and
ety of mouse were both made and grown the Schmeiser, the court reduced a difference to
new variety could not count as an invention. a relation of proportionality, or of parts to a
Although the inventor had invented and man- whole. The analogy between a gene construct
ufactured the gene construct that was inserted and a block of Lego not only collapses the
into each mouse embryo, the ultimate prod- difference between the grown and the made,
ucts (adult mice bearing the trait conferred but it does so by the distinction between tan-
by the construct) were grown through natu- gible and intangible things, or between form
ral metabolic and ontogenetic processes. The and matter. The proper object of intellectual
mouse as a whole could not be a manufac- property is the idea or design that informs and
ture because its material form was not entirely structures each exemplar or embodiment of
structured or programmed by the patented an invention, and it is at the level of design
idea. Only two years later, deciding the cel- that the tension arises. Again, the problem
ebrated case of Monsanto v. Schmeiser (2004), a here is that patent law’s commitment to the
majority in the Canadian Supreme Court held distinction between the grown and the made

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prevents it from exploring other modes of spectives into a common horizon so as to com-
existence. plicate homogenous doctrine. In one case,
The expansion of transnational intellectual that of global health within the framework of
property regimes has recently become a cen- the TRIPS (Trade Related Aspects of Intellec-
tral focus of theoretical and historical scholar- tual Property Rights) agreement (see Abbott
ship (see Drahos & Braithwaite 2002, Maskus 2005), the economic or industrial understand-
& Reichman 2005, Sell 2003). There is a ing of biotechnology enters into a tension with
sense in which the emergence and function- the therapeutic promise of biotechnology.
ing of many of these regimes are attributable From an economic perspective, biotechnol-
to the global expansion of the biotechnol- ogy is an industry like any other, and biotech-
ogy industry. According to the most succinct nological innovation falls squarely within the
definition, transnational law is “law that is remit of the so-called patent bargain. There
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neither supranational nor international, but are variations on the theme of the patent bar-
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which is made by the parties themselves” gain (see Mazzoleni & Nelson 1998), with the
(Delmas-Marty 2003, p. 27). These parties— most essential justification that patent rights
global corporations, nongovernmental orga- work prospectively as incentives to encour-
nizations, agencies of international organi- age innovation and retrospectively as rewards
zations, academic institutions, novel forms for increasing the fund of public knowledge.
of tribunal or arbitration panel—are collec- Against this, the biomedical interpretation
tively fabricating a form of intellectual prop- of biotechnology emphasizes its potential for
erty law that is quite different from the in- tackling global health issues and suggests that
ternational regimes of the late nineteenth pharmaceuticals should be available as a hu-
and early twentieth centuries. Whereas the man right rather than as a public contractual
great intellectual property conventions of the benefit. Indeed, one might say that the con-
nineteenth and twentieth centuries were con- troversy surrounding the interpretation of the
ceived by formally equal state actors with Doha Declaration (Médecins sans Frontières
shared paradigms of scientific and technical 2004) is not so much a dispute between in-
knowledge, broadly similar understandings of terested actors as a conflict between two dis-
creativity, and common political justifications cursive rationalities: economics and human
of intellectual property, transnational intellec- rights (see Fischer-Lescano & Teubner 2004).
tual property is not produced by the replica- Whereas, in the case of global health, intellec-
tion of homogenous doctrine. Transnational tual property doctrine is challenged by a po-
discourses of intellectual property are ad- litical or moral interpretation of technolog-
dressed to new and expanded constituencies, ical potential, in the case of bioprospecting
they negotiate diverse conceptions of author- heterogeneous interests are brought together
ship or creativity, and they articulate novel by the industrial program of natural products
configurations of law, politics, economics, and research.
science (see Coombe 2003). Global intellec- Natural products research is premised on
tual property is now diffracted into a mul- the observation that many of the most famil-
tiplicity of interpenetrating regimes, each of iar and successful pharmaceutical agents have
which links intellectual property into the dis- been based on compounds found in nature. In
courses of economics, development, human the latter part of the twentieth century, phar-
rights, culture, and biomedicine, respectively maceutical corporations began to undertake
(see Helfer 2004). various kinds of bioprospecting activity in an
Biotechnology has played a significant role attempt to exploit these natural genetic vari-
in creating these discursive networks. In two ations. Since then, commercial and academic
particular areas, the discourse of molecular in- participants have taken differing views on the
formation has drawn diverse actors and per- viability of screening natural compounds for

328 Pottage
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pharmaceutical activity, and many biotech- sources, the attribution of property rights be-
nology corporations now favor rational drug comes a transparently constructive operation:
design rather than bioprospecting as an ap- “[P]rospecting agreements do not merely di-
proach to drug discovery. Those corporations rect the traffic in resources but rather help gen-
that engage in bioprospecting are ultimately erate their constituent subjects and objects”
interested in molecules with interesting ther- (Hayden 2003b, p. 127). In related studies,
apeutic or industrial properties, but access to Brush (1999) surveys the complex relations
these molecules is often mediated by local eth- between cosmopolitan plants and the diverse
nobotanical knowledge: The most interest- groups that were historically responsible for
ing pharmaceutical candidates are often plants their cultivation and conservation, whereas
that are recognized in traditional medicine Greene (2004) explores how indigenous peo-
(see Jaszi & Woodmansee 2003). Ever since ples resolve themselves into political agents so
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

1992, when the parties to the Convention on as to stake prospective ownership claims to ge-
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Biological Diversity affirmed that genetic re- netic resources. Coombe (2003) addresses the
sources were not the common heritage of hu- nature of the global process in which novel in-
mankind but rather the resources of sovereign tellectual property concepts and institutions
states, access to plants and the knowledge as- emerge from bioprospecting practices. The
sociated with them have involved extensive analysis focuses partly on the paradigm of sol-
legal and political negotiation. Pharmaceuti- idarity that is fostered by the idiom of bio-
cal corporations now enter into complex bio- prospecting, which “asks ‘us’ to embrace im-
prospecting contracts that include not only poverished others as subjects on whom ‘we’
agencies representing the authors or providers are or might at some future point be depen-
of the resource, but also a broad set of in- dent [for genetic resources]” (Coombe 2003,
termediaries such as academic institutions, p. 280) and partly on the expansion of the con-
governmental agencies, and corporate sub- ception of authorship beyond the narrowly
sidiaries. The form of these contracts reflects economic interpretation of Western intellec-
the purpose of the convention as “an in- tual property law and into discourses of hu-
strument to promote the equitable exchange man rights and cultural distinction.
of access to genetic resources and associated Against the background of these discus-
knowledge for finance, technology and partic- sions of biotechnology and intellectual prop-
ipation in research” (Convention on Biologi- erty forms, the specter of Terminator technol-
cal Diversity 1996, paragraph 1.1). ogy emerges as a strangely conservative figure.
Bioprospecting has become the focus of The technology itself is highly innovative,
some of the most innovative scholarship in but political and normative responses have
the field of intellectual property. The ques- turned it into an expression of familiar modes
tion of how property rights are indexed to the of appropriation and familiar logics of prop-
fluid character of molecular information and erty. Terminator technologies first emerged
cultural authorships is addressed by a number in 1998 in a U.S. patent that claimed an array
of anthropological studies. Hayden (2003a,b) of gene sequences that, when activated, would
starts from the premise that bioprospect- express a toxic protein, preventing further de-
ing contracts draw on too many idioms of velopment of the cells that composed the seed
entitlement: “In what idiom—territoriality, tissues of the maturing plant. The invention
nationalism, cosmopolitanism, authorship— was designed to prevent proprietary plants
will biological collections be attached to so- from developing seeds that could be saved
cial relations, interests, and claims?” (Hayden by farmers and used to reproduce the genetic
2003a, p. 368). As a result, given that there property of agricultural biotechnology corpo-
are inevitably too many grounds for claim- rations. By programming the maturing plant
ing or justifying ownership of genetic re- to act as a kind of proprietary automaton,

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 ANRV327-LS03-15 ARI 23 September 2007 17:2

Terminator technologies sought to turn liv- selves and multiply in farmers’ fields so that
ing organisms into enclosures of genetic in- capital can reproduce and multiply in in-
formation. But this technology is an instance vestors’ bank accounts” (Berlan & Lewontin
of fiction science in that it exemplifies “the 1998). The maneuver of folding biological
way in which innovative designs take account property back into familiar logics of appro-
of prospective interests in, uses of, and resis- priation can also be seen in doctrinal legal
tances to alternative material arrangements” discussions of the nature of plants as objects
( Jordan & Lynch 1998, p. 776). Ever since of property. In broad terms, the ability to turn
the first Terminator patent was granted, vari- plant genomes into programmable text—
ous studies have made the point that it was an which is exactly what Terminator technology
ongoing research program rather than a fin- seems to do—is taken to represent a profound
ished product. And since 1998 this research transformation in the legal existence of plants;
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program has been characterized in different plants now become “genetic datasets” ( Janis
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terms, some of which have been reflected back & Smith 2006), or embodiments of digitally
into the form of the technology. For example, archived information. The notion that re-
in response to complaints about unnatural ef- combinant DNA technology now resembles
fects of Terminator technologies on the re- digital information processing is specifically
productive cycles of plants, the biotechnology applied to Terminator technologies, which
laboratories proposed a version in which pro- are seen as examples of “the instantiation of a
prietary traits would become optional extras; proprietary rule in genetic code” (Burk 2002,
plant seeds engineered to carry a premium p. 114). Ultimately, the more dramatically
trait would be reproducible naturally, access researchers can reduce the complexity of
to the proprietary trait being conditional on biological organisms, the better they can turn
payment of a fee or royalty for the appro- these organisms into instrumentalizable me-
priate chemical-inducing agent. In yet an- dia and simultaneously reduce the difficulties
other guise, Terminator technology evolved (and the interest) of the encounter between
from an intellectual property mechanism into biotechnologies and patent law.
an instrument of environmental protection;
Terminator sequences could be used to ex-
cise transgenes from plant tissues to prevent GOVERNANCE
their accidental dispersal through genetic drift Biotechnologies have not only generated new
(Keenan & Stemmer 2002). challenges for legal governance; they have also
Legal commentaries have addressed elicited new idioms and referents for gover-
Terminator technologies as a means of restor- nance and regulation. The challenges arise
ing a logic of ownership that is eroded by the principally from the commercialization of ge-
global expansion of agrobiotechnology. For netically modified organisms (GMOs), the in-
example, Swanson & Goeschl (2005) suggest troduction of various modes of genetic test-
that the evolution of Terminator technologies ing and identification, and the emergence
can be seen as a rational response to the prob- of a global market in genetic information.
lems of enforcing intellectual property rights Regimes of legal governance seek to adapt the
in certain jurisdictions; biological property languages of regulation, liability, compensa-
is just an alternative means of realizing insti- tion, and insurance to the specific potentiali-
tutional property. Another line of argument ties (risks and opportunities) of transactions in
emphasizes the sense in which Terminator biotechnology. As a result, these new govern-
technologies reinforce corporate power by mental norms are structurally coupled to the
turning biotechnologies into “strange life evolving character of biotechnological knowl-
sciences that conspire against the marvelous edge and to the complexities of molecular in-
property of living things to reproduce them- formation. This mode of coupling is multiple

330 Pottage
 ANRV327-LS03-15 ARI 23 September 2007 17:2

and reflexive. For example, in debates con- vidualized and collective biological existence.
cerning the risks of biotechnology, scientific Recent studies have described the emergence
practices and representations are mobilized of governmental strategies designed to en-
as resources for political argument, and this hance the molecular potentiality of the body
politicization of the technical is amplified by rather than rates of fertility; life is “imagined,
the role of politics in framing research agen- investigated, explained, and intervened
das and securing budgets (for a case study, upon at a molecular level—in terms of the
see Lassen et al. 2002). But the translation molecular structure of bodily components,
of biotechnological knowledge into govern- the molecular processes of life functions, and
mental policy is creative in other ways; it gen- the molecular properties of pharmaceutical
erates new artifacts of governance, either in products” (Novas & Rose 2000, p. 487). The
the sense that genetic information becomes proposition is not that molecular information
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

the object of governmental interventions or has replaced or eclipsed other resources for
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in the sense that molecules themselves be- (self-) identification, nor do scholars suggest
come agents or media of normative regu- that no sources and techniques of biological
lation. The most innovative scholarship in citizenship exist (Rose & Novas 2003) that
this area explores these interpenetrations of are not directly derived from the molecular
governmental schemes and biotechnologi- gaze. Nevertheless, some do argue that
cal knowledge. The broader approach treats biotechnology informs an entirely new theme
biotechnological knowledge as a novel varia- of governance that colonizes legal form just
tion on the familiar themes of biopower (Rose as effectively as earlier modes of biopower.
2006) and governmentality [for the origi- As in the classical model of biopower,
nal specifications of the theory, see Foucault which distinguished the life of the popula-
(1978), and for commentary, see Rose (1999), tion from that of the individual, there are two
Rose et al. (2006)]. At another order of scale, interlinked dimensions to the molecular gaze
scholars undertake more specific investiga- (Rose 2006). In one register, molecular poten-
tions into the molecularization of normative tiality is a concern of governmental institu-
form (Gottweis 1998, Lezaun 2006). tions, which seek to maximize the value of the
Biopower (see, generally, Foucault 1978) genetic variations represented in their pop-
has long been a familiar theme in legal- ulations and to modulate the economic and
theoretical scholarship, and it has recently social costs of disease. For example, genome
been revivified by the critical studies of mapping has generated the figure of the single
Agamben (1998) and Hardt & Negri (2000). nucleotide polymorphism (SNP), which has
One of the key insights of Foucault’s presen- been absorbed into governmental discourses
tation of biopower was the proposition that as an index to variations within populations:
“the action of norms replaces the juridical sys- “[T]he science itself, and the recognition of
tem of law as the code and language of power” the variability of the human genome at the
(Ewald 1990, p. 159). Norms were articulated level of the single nucleotide, immediately
by the set of practices, policies, and pastoral open up a new way of conceptualizing popu-
exhortations that shaped the expression of lation differences—in terms of geography and
individual sexuality and that articulated a ancestry—at the molecular level” (Rabinow &
governmental interest in fertility. These Rose 2006, p. 207). Molecular cartographies
normative (self-) descriptions might or might have various governmental uses. One such use
not have been channeled through legal rules is premised on genetic testing in areas such
and institutions; the point was that they were as employment, education, parenting, crimi-
productive rather than repressive. They were nal law, and insurance (Rose 2006, chapter 4).
directed to the enhancement of life and to In another kind of strategy, molecular car-
increasing the productivity and value of indi- tographies are the basis for the exploitation

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 ANRV327-LS03-15 ARI 23 September 2007 17:2

of an emerging form of biological capital; nomics; indeed, one might say that this mode
governments, often in alliance with private of research is one of the essential characteriz-
corporations, have turned genetic informa- ing features of contemporary biopower. More
tion into a marketable resource for consump- precisely, it reveals a particular variation on
tion in commercial biomedicine (Waldby & the theme of governance as risk management.
Mitchell 2006). Extending this governmental As with the classical forms of biopower stud-
logic, categories of race are appropriated and ied by Foucault, research programs in ge-
reshaped in patent specifications as ways of netic medicine have interdependent cogni-
extending the period of time for which cer- tive and normative effects. Biomedicine is an
tain pharmaceutical inventions remain under epistemic project in the sense that it con-
patent (Kahn 2006). In these various ways, “a strues the world according to a particular set
modified biopolitical rationality in relation to of diagrams, categories, and traces, but this
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

health is taking shape, in which knowledge, epistemic horizon also conditions the (self-)
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power and subjectivity are entering into new formation of subjects across an increasingly
configurations, some visible, some potential” broad range of social discourses. One effect
(Rabinow & Rose 2006, p. 213). of the rise of biomedicine has been the paral-
In another register, molecular potential- lel expansion of the domain of the therapeutic.
ity is the medium in which individuals sculpt Sunder Rajan (2006) argues that aspects of hu-
their own selves in the light of information man existence are increasingly characterized
about their susceptibilities to disease or their as conditions or illnesses that are susceptible
reproductive potential. Information gathered to diagnosis and treatment by molecularized
from genetic testing becomes a resource therapies, with the effect that individuals in-
for the constitution of somatic individuality creasingly become the site of calculations as
(Novas & Rose 2000); in an alternative for- to research risks and market risks: “genomic
mulation, discourses and information drawn information that configures individual subjec-
from biotechnological knowledge are said to tivities as those of patients-in-waiting by fore-
extend and reinforce existing projects of bio- telling future possible illnesses also very much
individuation (Memmi 2003). Already, the configures their subjectivities as consumers-
first participants in assisted reproduction were in-waiting for drug development companies
moral pioneers (Rapp 2000) in the sense that looking to increase their market” (Sunder
they experimented with new normative id- Rajan 2006, pp. 143–44).
ioms, and this mode of bio-individuation is Two points are essential here. The first
increasingly linked to governmental exper- is that bioreflexivity is premised on a calcu-
tise by a relation of reciprocal constitution: lus of risk rather than a tension between the
In the context of medical care, the indi- normal and the pathological, the effect being
vidual becomes “skilled, prudent and active, “a reconfiguration of subject categories away
an ally of the doctor, a proto-professional” from normality and pathology toward vari-
(Novas & Rose 2000, p. 489). Indeed, de- ability and risk, thereby placing every indi-
veloping the Foucauldian model of biopower, vidual within a probability calculus as a po-
Memmi (2003) argues that the biopolitical tential target for therapeutic intervention”
regulation of life is increasingly delegated to (Sunder Rajan 2006, p. 167). The second is
the individual, in forms that are “encouraged, that this risk calculus simultaneously mobi-
guaranteed, and supported by the state itself” lizes and defers the risks inherent in biotech-
(p. 292). Biopower is individualized and incar- nologies. Precisely because it tries to instru-
nated in an operation of bioreflexivity. mentalize complex and emergent biological
Biopolitical strategies now include private processes, biomedical research is necessar-
corporate research programs in genetic di- ily a speculative activity, but the core strat-
agnostics, targeted therapy, and pharmacoge- egy of biomedicine is to make this mode

332 Pottage
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of speculation economically productive by the basis for a very specific mode of balanc-
drawing investors and consumers into paral- ing technological evolution against potential
lel modes of orientation to the future, both social harm. The global reach of the precau-
of which treat research risk as capital. In- tionary principle was negotiated in the debate
vestors are invited to gamble on the stock surrounding the adoption by the World Trade
market prospects of profitable research pro- Organization of the Cartagena Protocol on
grams, while consumers are invited to incor- Biosafety (2000), which addressed the mar-
porate the promise of effective diagnosis and keting of GMOs. The final text was a com-
personalized therapy into their own modes of promise between the precautionary principle
bio-individuation. These two modes of specu- and the science-based approach favored by
lation link up at the point where individuals as the United States; it gave some recognition
patients-in-waiting also constitute themselves to the notion of precaution by recognizing
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as consumers-in-waiting; on one hand, these that nations were not obliged to justify trade
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potential consumers form the market that restrictions on the importation of GMOs on
guarantees (in the mode of futurity) investors’ the basis of specific scientific evidence (which
stakes, while on the other hand increased in- was the approach pressed by the United States
vestments extend and refine the range of di- as a principal global exporter of GMOs), but
agnostic and therapeutic options with which the precautionary principle was not named as
individuals have to reckon in their capac- such in the text of the Protocol, nor were its
ity as patients-in-waiting. The outcome—the normative premises developed to any extent.
standing imperative for a wide range of ac- So the precautionary principle represents only
tors “constantly to calculate their futures pre- one approach to the problem of governing
cisely because of the difficulty of calculating the risks of biotechnology, and it has been
them” (Sunder Rajan 2006, p. 177)—is a spe- widely criticized as a conceptually incoherent
cific variation on the predicament of individu- formula that is at best a cause of economic
ality as it is described in Foucault’s discussions paralysis and at worst a generator of increased
of biopower. social risk (Sunstein 2005). Nevertheless, the
This scholarship reveals one facet of biore- principle serves as an interesting case study in
flexivity as a normatively productive operation the mobilization of bioreflexivity in the con-
that constitutes and holds together diverse struction of normative form.
forms of biopolitical entities. Other forms of Ewald (2002) situates the precautionary
scholarship reveal another, equally significant, principle in a genealogical diagram of dif-
mode of bioreflexivity, in which uncertainty is ferent governmental and legal strategies for
not capitalized as a resource but accentuated managing risks and accidents: legal liability,
and dramatized as a political predicament. social solidarity, and precaution. This diagram
This mode of reflexivity is nicely brought traces the transformation within governmen-
out in studies of the so-called precaution- tal or regulatory logic of a set of terms that
ary principle (Godard 1997, Noiville 2003, are each essential to the theme of instrumen-
Sunstein 2005). The essential premise of the tality: causation, prediction, and compensa-
precautionary principle is that technologies tion. The classic liberal-legal regime of lia-
that have the potential to cause massive and bility was based on the principle of prudence
irreversible harm should be subject to regu- in the sense of moral self-mastery and self-
lation even in the absence of clear evidence restraint. It was left to each (legal) person to
of the likelihood of harm, with the burden apprehend and engage with causal processes
of proof placed on proponents of the tech- according to their own volition, and a failure
nology. Given the importance of technologi- of prudence automatically entailed the attri-
cal innovation to economic development, the bution of liability: “[I]t is I who was unable to
precautionary principle effectively becomes take a particular element into account; it is I

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 ANRV327-LS03-15 ARI 23 September 2007 17:2

who did not understand the laws of nature or tive means of compensation. Ultimately, the
was unable to use them. In any case, and always regime of precaution is predicated on suspi-
without exception, it is my fault” (Ewald 2002, cion rather than risk analysis. Decisions have
p. 275). The obverse of liability was the legal to be made, but they are made “not in a con-
right to damages; in cases in which there was text of certainty, nor even of available knowl-
loss without liability, the legal regime made edge, but of doubt, suspicion, premonition,
no provision for pure victims. Regimes of sol- foreboding, challenge, mistrust, fear, and anx-
idarity corrected this failing by shifting from iety” (Ewald 2002, p. 294). Ewald presents the
a principle of prudence to a principle of in- precautionary principle as one of many instru-
surance. Just as regimes of biopower appre- ments of “reflexive modernization” (Ewald
hended death as a permanent social fact rather 2002, p. 295) and more precisely as a response
than an individualized event (Foucault 1997, to a situation in which scientific knowledge—
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p. 217), so in regimes of solidarity responsibil- rather like society itself—encounters its own
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ity “is no longer the attribute of a subject, but limits. Arguably, this understates the persis-
rather a consequence of a social fact” (Ewald tence of reflexivity. One might say that the
2002, p. 280). Obligations to make compensa- reason the paradigm of solidarity and insur-
tion did fall on individual subjects, but only in ance falls away is that the representation of
terms of a social-contractual calculus of fair- the social as whole aggregate becomes unten-
ness and ability to pay. Although social facts able; the basic condition for the emergence
and laws exceed the cognitive capacities of in- of the precautionary principle is the disag-
dividuals, there is a sense in which the logic of gregation of society into a number of differ-
insurance-based solidarity assumes that con- entiated discourses, each of which evaluates
tingencies can be assessed and accounted for risks to society as a whole in terms of its own
from some superior vantage point. In other cognitive schemata and normative objectives
words, the regime of solidarity does not en- (see, generally, Luhmann 1989). To the extent
tirely give up on causal analysis. By contrast, that there are systematized forms of probabil-
the regime of precaution entirely abandons ity calculus or actuarial reckoning, the mean-
any pretension to master social contingencies. ing of these analyses is reconstructed in accor-
In one sense, this inability to master so- dance with the specific logic of each discursive
cial contingencies arises because the stance rationality.
of precaution corrodes the available grounds In what sense does the precautionary prin-
of predictive knowledge and risk assessment. ciple link this general predicament of risk, re-
It thoroughly relativizes scientific knowledge flexivity, and social differentiation to the con-
by deconstructing the social and cognitive ar- tingencies of biotechnology in such a way
chitecture of scientific paradigms. First, it ex- as to constitute a specific mode of biore-
tends the time frame for catastrophe into a fu- flexive governance? One might begin with
ture that extends well beyond the usual span of the proposition that the principle of precau-
plausibility of scientific theories, thereby un- tion is premised on a particular characteriza-
dermining knowledge by confronting it with tion of risk. The political theme of “sanitary
its future obsolescence. Second, it turns scien- vigilance [vigilance sanitaire]” (Memmi 2003,
tific disciplines into incoherent and internally p. 282) represents risk as a physical or corpo-
contested bodies of knowledge by giving par- real phenomenon: Risks are apprehended not
ticular weight to fringe positions that are usu- as indices of potential economic loss but as
ally externalized by the process of scientific traces of a prospective danger to the integrity
paradigm formation. Moreover, by emphasiz- of the human body or of the environmental
ing the catastrophic and irreversible nature networks in which bodies are (still) immersed.
of potential harm, the idiom of precaution The body is again mobilized as a biopolitical
disqualifies the use of insurance as an effec- device. And regulatory attention to GMOs is

334 Pottage
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motivated by concerns about just this sort of of the precautionary principle into responding
corporeal risk: To what extent might trans- to the politics of sanitary vigilance (see Ewald
genes be incorporated into wild species by 2004a,b). With reference to the organizing
means of genetic drift, and what might be the rubric of this review—how do biotechnolo-
ecological impact of genetic drift? To what ex- gies engage legal form?—the significance of
tent does the intensive use of antibiotic agents the precautionary principle is that it reveals a
in plant modification put consumers’ health species of normative form that is structured—
at risk? To what extent might metabolites or continually restructured—by tensions be-
formed from transgenic organisms be passed tween the diverse social rationalities that com-
up the food chain, and with what toxicological pose biotechnologies: politics, economics,
risks? From this perspective, the precaution- science.
ary principle as it has evolved in European pol-
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itics articulates a particular kind of biopolitical

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strategy. In the theme of sanitary vigilance as REFERENCE

it is deployed by a new constituency of polit- The shift from the grown to the made might
ical actors (Memmi 2003, p. 283), the body- be represented as a shift from selection to
at-risk materializes and warrants the kind of instruction, or as the outcome of a process
suspicion that sustains the precautionary prin- in which, through “molecular biological writ-
ciple. The body-at-risk becomes an emblem ing,” human beings have “gained access to the
of political commitment and a motive for the texture—and hence the calculation, instruc-
“doubt, suspicion, premonition, foreboding, tion, and legislation—of the human individ-
challenge, mistrust, fear, and anxiety” (Ewald ual’s organic existence—that is, to a script that
2002, p. 294) that make the precautionary until now it has been the privilege of evolu-
principle so corrosive of scientific knowledge. tion to write, rewrite and alter” (Rheinberger
This mode of bioreflexivity is the obverse 1995, p. 252). This understanding of instruc-
of bioreflexivity as it is mobilized in the mak- tion is usually interpreted in terms of engi-
ing of commercial biomedicine. Commercial neering competence or as a cipher for the
programs in genetic diagnostics and phar- ability of biotechnologies to manipulate or
macogenomics exploit one variation on the instrumentalize biological components by re-
theme of corporeal risk; speculative research ducing them to a set of permutable or com-
programs are sustained by replicating bodily binable elements. This notion of life as text
risk into the two complementary figures of or mechanism—the two variations are con-
the patient-in-waiting and the consumer-in- joined in the implicit metaphor of genetic
waiting (Sunder Rajan 2006, chapter 4). Both code as moveable type (Pottage 2006a)—is
figures are produced from within the medium represented in debates over human cloning,
of corporeal risk. The political program of in which the mastery of genetic script is seen
health vigilance recruits corporeal risks in an as a condition for the success of reproduc-
entirely opposite way; it does not share the as- tive or therapeutic cloning. The technology
sumption that risks can be addressed and mo- itself may be somewhat more complex than
bilized within reflexive processes of individu- that (see Franklin 2007), but the general rep-
ation; instead, it constantly accentuates and resentation of clones as genetic copies trades
dramatizes risk in order to promote a par- on the logic of instruction. The questions that
ticular political program. Corporeal risk be- biotechnological instruction poses for law and
comes a kind of surplus value of social dif- legal theory are understood to be essentially
ferentiation, which is drawn upon by political questions of regulation: Should the parents of
critique as resource for argumentation. The a child with an otherwise untreatable genetic
reach of this political critique is such that it condition be allowed to design their next child
even draws Ewald’s own genealogical theory as a kind of resource to ensure treatment for

www.annualreviews.org • Socio-Legal Implications of New Biotechnologies 335

 ANRV327-LS03-15 ARI 23 September 2007 17:2

the first? To what extent should therapeutic of genealogical relationship—that performed

cloning be encouraged as an effective means certain kinds of contingent legal operation in
of realizing biomedical objectives? These ap- the name of biology.
proaches construe law in instrumental terms, The effect of biotechnology on this mode
as a means of articulating and imposing the of evidential knowledge is illustrated in stud-
norms that define the human, but what might ies of how courts have addressed the possibil-
be more interesting is a focus on the effects ity of being certain about biological relation-
that the fantasy of instruction has had on ships. Since the 1980s, DNA testing has been
the structure of legal concepts and institu- able to be used to establish or verify paternity
tions rather than on the uses of instruction with certainty. Dolgin (2000) tracks the shift
as a mode of creating new objects of legal from a form of paternity that was premised on
attention. the logic of presumptions to a form of pater-
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

Consistent with the theme of this review, nity that takes into account the scientific cer-
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the question is what effect technologies of tainty of DNA testing. In most jurisdictions,
molecular writing have had on the making a child born within a marriage is presumed to
of legal institutions. In what sense does ap- be the child of the husband, with the burden
prehension of biological facts at a dramati- on the husband to adduce persuasive evidence
cally enhanced order of resolution disturb the that he is not the father, or, more precisely, to
architecture of legal institutions? More pre- prove that he had no opportunity or capacity
cisely, what effects has the use of DNA finger- to be the father by virtue of nonaccess, im-
printing had in the institutions of family law potence, or sterility. In one sense, the struc-
and criminal law? How do biotechnologies ture of the presumption was an attempt to
(re)constitute the referential relation between second-guess the biological facts. In another
legal categories and biological facts? Classi- sense, it was a fiction sustained on the basis of
cally, legal institutions deal in evidence of bi- evidence rather than knowledge of the facts
ological states or events rather than biology it- themselves. And the difference between evi-
self. The difference between the two registers dence and the facts themselves was crucial to
is nicely expressed by Austin (1962, p. 115): the institutional logic of family law. The insti-
One has “evidence for the statement that some tution of paternity was ostensibly predicated
animal is a pig [when] the beast itself is not ac- on biological facts; it was an autonomous con-
tually on view, but I can see plenty of pig-like struct within which certain institutional ef-
marks on the ground outside its retreat, [but] fects were triggered by biological events, but
if the animal then emerges and stands there the institution itself was not a direct transla-
plainly in view, there is no longer any question tion of biology into law. It followed that the
of collecting evidence; its coming into view presumption of paternity was not simply an
doesn’t provide me with more evidence that evidentiary technique; it was also a device that
it’s a pig, I can now just see that it is, the ques- structured disputes in such a way as to regulate
tion is settled.” Evidence points beyond itself the effect of corrosive information on fam-
to the object it represents, but there is always ily relations that were already established and
an essential distance or discrepancy between that stabilized broader legal and social expec-
object and representation. The ultimate fact is tations as to the proper location and transmis-
incorporated in the evidential trace, but only sion of responsibility, authority, and property.
and always in the mode of deferral or antic- The availability of accurate DNA finger-
ipation. And because the state of biological printing has complicated the functioning of
knowledge did not allow this moment of de- this institution by shifting the register of insti-
ferral to be collapsed completely, there was tutional knowledge from evidence to the thing
considerable room for maneuver in construct- itself. Dolgin (2000) explores the effects of this
ing institutional schemes—principally forms shift by reference to jurisprudence concerning

336 Pottage
 ANRV327-LS03-15 ARI 23 September 2007 17:2

the admissibility of DNA evidence. In one might be vulnerable to its effects. In the case of
case (discussed in Dolgin 2000, pp. 530–32), the institution of paternity, this regulatory re-
a court in the United States refused to admit lation is what constitutes the institution. The
DNA evidence proving that a man was not maneuver is not one in which a logic of evi-
the father of a child born while he was mar- dence or presumptive certainty is exchanged
ried to his former wife. The court reasoned for a logic of scientific certainty, but one in
that the presumption of paternity continued which the institution holds together both or-
to apply because the paternal relationship had ders of knowledge.
been formed well before the DNA test was Again, Strathern’s observations are in-
made, and that this relationship continued to structive here: “Knowledge that comes from
characterize both the father and the child. The [DNA] testing gives a modern way (genetic
presumption was deployed as fiction sustained identification) of being certain about a
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

in plain contradiction to the facts. The reason traditional category of parentage (biological
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is obvious: The appellate court was concerned fatherhood); but it is also a traditional way
not only to address the particular case before (establishing biological connection) of defin-
it but also to establish a precedent that would ing a thoroughly modern kind of parentage
regulate the admissibility of DNA evidence (scientifically certain fatherhood)” (Strathern
in future cases. According to the court’s con- 1996, p. 48). The regulatory approach to
ception of healthy family relationships, fathers biological information shifts between the
should be dissuaded from asserting scientific two forms of knowledge, sustaining the
certainties against a family member whose re- traditional form of the institution at the same
lation to them was established by other means. time that it incorporates modern certainties.
DNA evidence was construed as a means of Obviously, an institution such as paternity is
verifying relationships that were established not made through adjudication alone, but we
by social and affective expectations rather than have “more tradition and more modernity at
scientific truth. the same time” (Strathern 1996, p. 45). This
Strathern’s analyses of the cultural power notion of a recombinant relation between
of biological information (see Strathern 1999, tradition and modernity has some interesting
chapter 4) offer a theoretical approach to this implications for the thesis that biotechnolo-
mode of judicial verification. Biological in- gies are dissolving the distinction between
formation is often effective as constitutive the grown and the made by thoroughly
information: “[K]inspersons who find things instrumentalizing society. As the title of one
out about their ancestry acquire identity by of Strathern’s reflections on Euro-American
that very discovery. Parentage implies related- kinship—After Nature (Strathern 1992)—
ness; facts about birth imply parentage. Euro- suggests, biotechnologies are after nature
Americans cannot ignore these connections” both in the sense that they undo and supplant
(Strathern 1999, p. 68). Given the immediacy natural ways of making kinship relations and
with which constitutive information takes ef- in the sense that the relations they fabricate
fect, the real question for doubting fathers or are modeled after nature, as factitious ways
adoptive children in search of their real par- of remaking nature where nature fails, or
ents is the second-order question of whether as techniques for enhancing natural ways of
or not to seek access to constitutive infor- being. So even if biotechnologies instrumen-
mation. And as the issue of paternity testing talize the world, they may do so by remaking
makes clear, the question is not only or neces- the grown in alternative ways.
sarily theirs to decide. Courts and other regu- The other, and perhaps more contentious,
latory agencies have assumed the role of regu- use of DNA fingerprinting is as evidence in
lating the risks of constitutive information in criminal trials. A number of issues arise from
the interests of the different individuals who the incorporation of DNA evidence into trial

www.annualreviews.org • Socio-Legal Implications of New Biotechnologies 337

 ANRV327-LS03-15 ARI 23 September 2007 17:2

procedure: the relation between legal judg- ences involved, the integrity of sample collec-
ment and scientific expertise ( Jasanoff 1998); tion procedures (Lander & Budowle 1994),
the socio-technological bases for the emer- the foundation of calculations as to the prob-
gence and perfecting of the procedure ( Jordan ability of matches, and the presentation of
& Lynch 1998, Lynch 2003); and the expan- evidence in the courtroom ( Jasanoff 1998).
sion of DNA databases as resources for crime Since then, with the evolution of the so-called
detection. One might say that, as with pa- multiplex short tandem repeat (STR) system,
ternity testing, the effect of DNA evidence which evaluates matches not on the basis of a
has been to transform the basis of institu- comparison of two traces but on a comparison
tional references to biological fact. Again, al- of multiple DNA traces drawn from a num-
though evidence in criminal trials pointed be- ber of different chromosomal sites, DNA ev-
yond itself to the event itself, the reality was idence has become the gold standard (Lynch
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

that the facts were iterated and produced by 2003) in forensic evidence: “Trust is invested
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various modes of institutional inscription and in a combination of automated systems, im-

narration, so that the facts themselves were pressive numbers, graphic outputs, and bu-
literally (re)materialized in the trial process reaucratic procedures” (Lynch 2003, p. 96).
(Scheffer 2004). To the extent that the essen- The process by which DNA evidence be-
tial logic of identification in criminal trials was came trustworthy reveals how legal and sci-
a logic of discernible uniqueness, according entific practices joined in the production of a
to which “two indistinguishable marks must specific form of referential relation. Return-
have been produced by a single object” (Saks ing to the observation that “innovative de-
& Koehler 2005, p. 892), then the arrival of signs take account of prospective interests in,
DNA fingerprinting promised to collapse evi- uses of, and resistances to alternative mate-
dence of uniqueness into proof of uniqueness. rial arrangements” ( Jordan & Lynch 1998,
Indeed, DNA evidence was initially presented p. 776), one might say that the scientific form
as a more perfect analogue of fingerprint ev- of the DNA fingerprint is just such a mate-
idence. Just as the evaluation of a finger- rial arrangement; it is a form that incorpo-
print was based on quantifying the number rates the outcome of debates about the nature
of matches between a print from the scene of forensic DNA evidence. Doubts and criti-
and an archived print, so were the bands of cisms made by lawyers were factored into the
DNA drawn from two samples compared ac- organization and design of procedures for col-
cording to the number of points at which they lecting, archiving, and presenting DNA evi-
matched: In both cases, prints and bands were dence, with the result that the test itself be-
“visually identified as elements in a holistic came a kind of coconstituted artifact of law
comparison” (Lynch 2003, p. 95). and science.
However, there is a significant difference In this case, the referential relation is not
between the institutional acculturation of simply a relation between a word and a thing;
DNA evidence in the contexts of paternity the relation is traced and maintained by a
disputes and criminal trials. Whereas pater- chain of reference that conditions, articu-
nity disputes incorporate DNA evidence by lates, and materializes a particular way of
means of discursive techniques that take ef- seeing the world. As a process, reference is
fect only once the evidence has been deliv- itself a particular kind of technological ar-
ered and the question of admissibility arises, tifact. A variation on this theme of legal-
criminal procedure has been much more ac- scientific reference technologies is found in
tive in constituting the scientific practice of Lezaun’s (2006) account of the emergence in
DNA testing. At the outset, DNA evidence the European Union of the regulatory cate-
seemed unreliable and inherently contestable; gory of the transformation event. Regulatory
doubts were raised about the rigor of the sci- agencies in the United States treat GMOs

338 Pottage
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as substantially equivalent to natural organ- plant variety. A transformation event is po-

isms, so that GMOs become the objects of tentially specific to each individual product
regulatory intervention only in cases in which of genetic modification. In broad terms, the
there is specific evidence that a given organ- regulatory objective was “to constitute a new
ism poses a hazard, whereas legislation in the bio-legal entity and make it real in the world
European Union starts from the premise that of biological organisms and food production”
there is a fundamental difference in kind be- (Lezaun 2006, p. 521). What is emphasized in
tween natural and artificial biological organ- Lezaun’s analysis is the regulatory reach of this
isms. The theory is that GMOs should be new artifact, the purpose of which is to chan-
rigorously distinguished from natural organ- nel the processes of manufacturing and mar-
isms at all stages of production and marketing, keting GMOs into clearly identifiable spatial
partly to allow regulatory authorities to inter- domains; the new technology has “the capac-
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

vene to remove any hazardous products from ity to fix things in specific places, to draw visi-
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the market, and partly to allow consumers ble limits in organisms and along the networks
to make an informed choice as to whether through which they move” (Lezaun 2006,
or not to consume the products of biotech- p. 521).
nology. But what is a GMO? Before 2003, This mode of fabricating reference is in-
GMOs were characterized by the detection of teresting for two related reasons. First, the
the most obvious traces of genetic interven- index of the transformation event identifies
tion. The modification of plant cells usually organisms without reference to any of the tax-
involves the insertion of highly recognizable onomies or categories that were traditionally
and effectively standardized regulatory gene used to actualize biological form. Organisms
sequences, which control the expression of the are not apprehended as genealogically pro-
core transgenic trait, and it is relatively easy duced entities, but are identified by reference
to distinguish natural organisms from artifi- to a temporal and spatial order that is entirely
cial organisms by testing for one or other of generated by the regulatory institution itself.
these standard regulatory sequences. But al- Not only does the institution fabricate its own
though this mode of testing sufficed to distin- referents; in so doing it enfranchises the reg-
guish artificial organisms from natural organ- ulatory scheme from the distinction between
isms, it could not distinguish between artificial natural and artificial organisms and from the
organisms. In 2003, the European regulations distinction between the grown and the made.
shifted to a new mode of testing based on the The transformation event is, quite literally, a
detection of transformation events. new kind of kind. Second, the axis of refer-
The object is to identify GMOs by refer- ence is internal to the regulatory institution.
ence to the unique molecular pattern that is Lezaun describes the production of a mate-
produced at “the junction areas, the two re- rial artifact, a form of referent that is made
gions where the transgenic DNA is ‘welded’ to answer to a particular regulatory concept,
to the genome of the host organism” (Lezaun but the materiality of the referent is just a mo-
2006, p. 511). Laboratories are required to ment in a process of self-observation. In con-
record the creation and marketing of new structing a means of tracing the movement of
transformation events rather than new organ- GMOs, the discourse of regulation divides a
isms. And because transgenic modification is conceptual form into a category and its refer-
a highly random operation, in which trans- ent, and this materialized referent becomes
genic DNA is inserted into the host genome a way of observing, testing, and enhancing
at unpredictable points, the point of welding the knowledge that is invested in the cate-
will be unique to each act of transformation, gory. The form of transformation event is suf-
even when the act manipulates copies of a sin- ficiently generalized to function not only as a
gle gene construct and exemplars of the same technique for governing or disciplining the

www.annualreviews.org • Socio-Legal Implications of New Biotechnologies 339

 ANRV327-LS03-15 ARI 23 September 2007 17:2

production of GMOs, but also as a cognitive and diseases, are dissolved into the new regime
form that is ideally suited to the accumulation of epigenetics, which calls into question many
of information that can be fed back into the of the premises of biomedical research and of
assumptions and expectations that structure theoretical studies of biomedicine and molec-
regulatory action. The transformation event ular biopolitics. The conjunction of these two
would be an ultracontemporary variation on trends creates a very particular context for law
the theme of the biopolitical norm as an in- and legal scholarship, and how that context
strument that actualizes the world to which it will evolve is unclear. Indeed, one may con-
refers (see, generally, Canguilhem 1991). clude that the evolution of biotechnologies
will not only generate new themes or objects
of theoretical research, but also generate new
CONCLUSION modes or vocations of scholarship. For exam-
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org

With instrumentalities in mind, two opposing ple, one of the responses to the emergence
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trends seem to be noticed in studies of the le- of nanotechnology and synthetic biology has
gal acculturation of biotechnologies. The first been a specific inflection of participant ob-
emphasizes the increasing capacity of biotech- servation in which scholarship tries to get in
nologies to instrumentalize the world. In the at the beginning of a new technological pro-
guise of nanotechnology and synthetic biol- gram and to build social science into techno-
ogy, and through modes of miniaturization logical networks (see, for example, Rabinow
and synthesis, biotechnologies seem to be re- 2004, Macnaghten et al. 2005). For the first
lentlessly pursuing the program of making ev- time, the emergence of new and significant
ery element of the world programmable or modes of technology can be framed by science
susceptible to engineering. The second trend studies and anthropology; in the light of these
reveals the counterinstrumental effects of evolutions of biotechnology, legal-theoretical
biotechnology. Here, the logics of linear cau- scholarship may develop its own innovations
sation, or of indexical relations between genes in interdisciplinary theory.

DISCLOSURE STATEMENT
The author is not aware of any biases that might be perceived as affecting the objectivity of
this review.

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Annual Review of
Law and Social
Science

Contents Volume 3, 2007

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Frontispiece
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Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p x
Immigration Law, Race, and Identity
Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p1
Accountability, Quantification, and Law
Wendy Nelson Espeland and Berit Irene Vannebo p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 21
How Autonomous Is Law?
Christopher Tomlins p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 45
Half Empty, Half Full, or Neither: Law, Inequality, and Social Change
in Capitalist Democracies
Robin Stryker p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 69
The Rule of Law
John K.M. Ohnesorge p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 99
Islamic Constitutionalism
Saïd Amir Arjomand p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p115
The Emergence, Content, and Institutionalization of Hate Crime Law:
How a Diverse Policy Community Produced a Modern Legal Fact
Valerie Jenness p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p141
Restorative Justice: What Is It and Does It Work?
Carrie Menkel-Meadow p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p161
Law and Collective Memory
Joachim J. Savelsberg and Ryan D. King p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p189
Law and Lawyers Preparing the Holocaust
Michael Stolleis p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p213
The Death of Socialist Law?
Inga Markovits p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p233
Legal Innovation and the Control of Gang Behavior
Eva Rosen and Sudhir Venkatesh p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p255

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 AR327-FM ARI 1 October 2007 15:52

Punishment Beyond the Legal Offender

Megan Comfort p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p271
The Effectiveness of Correctional Rehabilitation: A Review of
Systematic Reviews
Mark W. Lipsey and Francis T. Cullen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p297
The Socio-Legal Implications of the New Biotechnologies
Alain Pottage p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p321
The Frontiers of Intellectual Property: Expanded Protection
versus New Models of Open Science
Diana Rhoten and Walter W. Powell p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p345
Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from www.annualreviews.org
Access provided by University of Waterloo on 02/02/15. For personal use only.

Personal Information, Borders, and the New Surveillance Studies

Gary T. Marx and Glenn W. Muschert p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p375
Institutional Perspectives on Law, Work, and Family
Catherine Albiston p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p397
Implicit Social Cognition and Law
Kristin A. Lane, Jerry Kang, and Mahzarin R. Banaji p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p427

Indexes

Cumulative Index of Contributing Authors, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p453

Cumulative Index of Chapter Titles, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p455

Errata

An online log of corrections to Annual Review of Law and Social Science articles may
be found at http://lawsocsci.annualreviews.org

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