Ch. 11 — Regulation of Genetic Engineering • 229 
4. extent to w hich the acti\ ity is not common, 
5. inappro[)i'iateness of the acti\ itv to the 
place where it is done, and 
6. the acti\ itv’s value to the community. 
C'ii\en the current consensus about the risks 
of genetic technicjues, it would he difficult to 
argue that the doctrine of strict liability should 
apply. How e\er, in the extremely unlikely e\ent 
that a serious, w idespread injury does occur', 
that alone would probably suppoi't a court's de- 
termination that the activity was abnormally 
dangerous, I'egai'dless of its pi'ohahility. In such 
cases, the courts have generally relied on the 
principle of “enterprise liability"— that those en- 
gaged in an enterprise should hear its costs, in- 
cluding the costs of injuries to others. 
For either negligence or strict liability, the 
person causing the harm is liable. L'nder the 
legal principle of respondeat superior, liability is 
also imputed fi'om the original actor to people 
or entities w ho have a special relationship with 
him— e.g., employers. I'hus, a corporation can 
he liable for the torts of its scientists or produc- 
tion workers. Similarly, a university, an IBC, a 
Biological Safetv Officer, and a PI would prob- 
ably he liable for the torts of scientists and stu- 
dents under their direction. 
.Another body of law designed to compensate 
injuries deserves brief mention. Workmen’s 
compensation is a statutory scheme adopted by 
the States and— for specific occupations or cir- 
cumstances— by the Federal Government to 
compensate injuries without a need for showing 
fault. The employee need only show that the in- 
jury was job-related. He is then compensated by 
the employer or the employer's insurance com- 
pany. It would clearly apply to genetic engineer- 
ing. 
Tort law and workmen’s compensation will 
be available to compensate any injuries re- 
sulting from the use of molecular genetic tech- 
niques, especially from their commercial appli- 
cation. Tort law may also indirectly prevent 
potentially hazardous actions, although the de- 
■•’R. Dworkin. "Biocatastrophe and the Law: Legal .Aspects of Re- 
combinant DN.A Research," in The Recombinant D\'A Debate, 
Jackson and Stitch (eds.) (Englewood Cliffs, X.J.: Prentice-Hall, Inc. 
1979), pp. 219, 223. 
terrent effect of compensation is less efficient 
than direct regulation— e.g., the threat of law- 
suits will not necessarily discourage high-risk 
activities where problems of proof make re- 
covery unlikely, where the harm may be small 
and widespread (as with mild illness suffered by 
a large number of people), or where profits are 
less than the cost of prevention but greater than 
expected damage awards and legal costs. 
Tort law has two other limitations. First, tort 
litigation involves high costs to the plaintiff, and 
indirectly to society. Second, it cannot adequate- 
ly compensate the victims of a catastrophic sit- 
uation where liability would bankrupt the 
defendant. 
State and local law 
L’nder the 10th amendment to the Constitu- 
tion, all powers not delegated to the Federal 
Government are reserved for the States or the 
people. One of those is the power of the States 
and municipalities to protect the health, safety, 
and welfare of their citizens. Thus, they can 
regulate genetic engineering. 
The reasons espoused in favor of local regula- 
tion are based on the traditional concept of local 
autonomy; those most likely to suffer any 
adv’erse affects of genetic engineering should 
control it. Also, local and State governments are 
usually more accessible to public input than the 
Federal Government. Consequently, judgments 
on the acceptability of the risks will more 
precisely reflect the will of the segment of the 
public most directly affected. 
A number of arguments have been made 
against local as opposed to Federal regulation. 
The primary one is that regulation by States and 
communities would give rise to a random patch- 
work of confusing and conflicting controls. In 
addition. States and especially localities may not 
have the same access as the Federal Govern- 
ment to the expertise that should be used in the 
formulation of rational controls. Finally, any 
risks associated with rDNA or other techniques 
are not limited by geographic boundaries; 
therefore, they ought to be dealt with national- 
ly. The above arguments reflect the position 
that regulation of genetic technologies is a na- 
