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The Bellman, the Snark, and the Biohazard Debate, 3 Yale Law & Policy Review 358 (1985)


Enormous hubbub—as evidenced by this symposium—has greeted the decision by Judge John Sirica, a good year ago now, in Foundation on Economic Trends v. Heckler. There the trial court issued a preliminary injunction prohibiting the release of recombinant DNA into the environment until the National Institutes of Health, under whose auspices the release was to take place, complied with the requirements of the National Environmental Policy Act. That, at least, is how a lawyer would describe the case. The scientific researcher's description of the case would probably be somewhat less complex: A court halted a scientific experiment. Government stood in the way of scientific progress, and that, in the view of the researcher, is simply outrageous. Perhaps the result in Foundation on Economic Trends is indeed outrageous, but outrageous or not, the court's action is at the very least a signal that times have changed.

At one time, the American public agreed with practitioners of the art that science was an "endless frontier," that scientific knowledge was itself a good thing, that there simply were no major problems not ultimately amenable to technological solutions. Yet it is important to understand how brief that era was. Scientists have been viewed with suspicion for about as long as there have been scientists, and government efforts to manipulate or suppress their work are nothing new. Only after the Second World War, which many saw as having been won in large measure by the superior technological expertise of the United States, did matters begin to change; the conquest of near space in the sixties fueled the optimism.

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