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Vanderbilt Law Review

Gaia Bernstein

First Page

965

Abstract

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I show that a host of seemingly unrelated social and legal controversies emanating from these technologies can be traced to a common tension. I demonstrate that by altering social structures through which we perceive our identity, genetic testing and the Internet induce novel societal tensions.

Secondly, I find that despite the role identity tensions play in controversies implicating genetic testing and the Internet, these tensions are not addressed in the legal debate. Furthermore, I show that our legal tools often fail to even indirectly protect identity interests. The study of identity tensions, therefore, uncovers a need for legal adjustment to accommodate the social changes resulting from the diffusion of these new technologies.

The failure to address identity interests combined with the frequent failure to provide for their protection calls for the incorporation of identity interests into our legal debate. Identity interests need to be considered in controversies as diverse as the physician's duty to warn relatives of a patient's genetic condition and commercial profiling on the Internet.

Specifically, I propose two potential resolutions: (i) direct incorporation of an independent identity interest; and (ii) indirect incorporation through the readjustment of existing doctrinal tools. I suggest that the pressures applied by the new technologies make both options viable by creating the need for inducing long overdue changes in our traditionally conservative legal discourse.

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