Reasons to eschew federal lawmaking and embrace common law approaches to genetic discrimination.

• Position: Is There a Pink Slip in Your Genes? Genetic Discrimination in Employment and Health Insurance - Transcript

Good afternoon. It's a privilege to be here, particularly since I am an employment law teacher with scant understanding of the gravity of genetic discrimination prior to preparing for this conference.

The main charge to me is to show you alternatives other than, for instance, federal legislation that could be deployed to rectify genetic discrimination.

You may have noticed that in our conference materials, and in a number of the presentations, there has been either an explicit or an implicit call along the lines of "there ought to be a law that ..." Professor Hoffman and I agree: there ought to be some laws, but I want to talk to you a little bit about two possible, two real goals here.

One is to ask you to critically evaluate whether a federal statute is the right remedial response at this point in time, and secondly, to ask you to start thinking about the possibility of drafting into service what we in law refer to as traditional state common-law approaches that actually might give us more and better ways to remedy what's going on than simply turning to Congress.

1. FEDERALLEGISLATION-TIMING AND IMPACT

   Now, as background for talking to you, I'd like for you to reflect, not about the idealized Congress of the United States, but who is in Congress; right now who are the individuals that actually fill the U.S. Senate and House of Representatives.

   A VOICE: Not a pretty picture.

   PROFESSOR HOKE: Indeed. That's the backdrop for what we're going to discuss now.

   As others have mentioned to you, we have a wide range of law-making entities at the federal and state levels.

   Federal law in this country has obvious power and influence. Federal law has the capacity to create mandatory duties and prohibitions, and its scope, unless limited, can be nationwide. The broad influence that it exerts is frequently not recognized. Even where federal law is not controlling, state courts and state policy entities will often look to the federal law for guidance as to what is truly right and good, and incorporate federal standards into state law.

   But, given the actual identity and commitments of those who are currently in control of federal policy making, specifically those in control of Congress, is this a proper time to press for federal legislation? Especially since whatever balance the federal policy strikes will exert great influence over related state law, we must raise this question.

   Federal law possesses an additional power that Professor Hoffman has mentioned, and that is the problem of pre-emption. Federal pre-emption of state law can occur via explicit language within a statute-for instance, the ERISA statutes. A provision may expressly mandate there shall be no state power to issue law in a particular arena. But power also rests within the courts to hold that certain federal law impliedly preempts state law and state policy from a subject area.

   So when federal statutes are enacted, one potentiality is that they will be viewed to be setting the entirety of policies for the nation, and not simply the federal rule for the subject matter that the feds are controlling at that point. In other words, enactment of federal legislation may mean that the feds have the first, last, and complete words on the given subject until statutory amendment occurs.

   Your response might be: so what? This sounds great. If I'm going to work on creating any kind of legislation, I'd rather have it have the broadest possible impact and there's really no reason to talk about anything else.

   Let me inventory various considerations that should be evaluated before choosing to press for federal legislation, in addition to the identity and values of the current Congress. First, a federal statute on an issue does tend to rigidify a policy for a large number of years. Let's say we pass a statute this year. It is very unlikely that the issue will resurface on the legislative agenda in Washington for another decade. That means we better have our ducks lined up well to achieve exactly what we want because we probably will not have another opportunity for a good while. It's rare for legislation to be permitted onto the congressional agenda simply for the purpose of correcting errors or omissions, or to rectify compromises, when an omnibus bill on the subject has been recently enacted. So, we must recall the difficulty in getting the subject matter back onto the legislative agenda.

   Second, as previously mentioned, the legislation may be deemed to be preemptive and thus, eliminate the novel State initiatives that have other speakers have discussed. If some of the other States' efforts are more progressive on the subject than what can be obtained via federal legislation, and might be used as models for other States and for later federal legislation, the elimination of these other models because of a judicial ruling of federal pre-emption would seem an unwise strategy.

   The third concern, and I would say critical point, which was mentioned yesterday in Paul's [Miller] talk and several times today, is that the authoritative interpretive power over federal legislation lies in our federal courts. We currently...