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56 DePaul L. Rev. 507 (2006-2007)
Testing Drugs versus Testing for Drug Use: Private Risk Management in the Shadow of Criminal Law

handle is hein.journals/deplr56 and id is 517 raw text is: TESTING DRUGS VERSUS TESTING FOR DRUG USE:
PRIVATE RISK MANAGEMENT IN THE SHADOW
OF CRIMINAL LAW
Robert J. MacCoun*
INTRODUCTION
The rule of law is often seen as a formal, governmental alternative
to informal, social mechanisms for regulating conduct.' In this Arti-
cle, I examine a more indirect manifestation of the rule of law: the
indirect effect that criminal law can have on private risk management
efforts by individuals and corporations. Formal law can encourage
private risk regulation, but it can also distort it.
This Article examines the chemical testing of psychoactive drugs.
Trained technicians in commercial laboratories routinely employ a
common technology-gas chromatography/mass spectrometry (GC/
MS)-to test samples for the presence of illicit psychoactive sub-
stances as well as for dangerous or benign adulterants. One of these
laboratories, LabCorp, provides occupational testing services for cor-
porate clients.2 Another, Drug Detection Laboratories (DDL), con-
ducts  GC/MS     screening   of samples    provided   by   DanceSafe,
EcstasyData.org, and      the   Multidisciplinary   Association    for
Psychedelic Studies (MAPS).3 LabCorp's samples are obtained from
corporate clients' random or systematic urine testing of their prospec-
tive and existing employees. DDL's samples come from anonymous
Ecstasy consumers who seek information on the potential presence of
adulterants in samples they have purchased illicitly.
This Article explores the remarkably different normative and be-
havioral consequences that follow from the use of the same basic labo-
* Professor of Law, Professor of Public Policy, and Affiliated Professor of Psychology, Uni-
versity of California at Berkeley. I am grateful to Susan Dennehy, Janette Catron, and Jennifer
Taylor for their assistance and helpful conversations, and to Jon Caulkins and Mark Kleiman for
valuable comments.
1. See, e.g., DONALD BLACK, THE BEHAVIOR OF LAW 107 (1976) (Law varies inversely with
other social control. (emphasis omitted)).
2. LabCorp Solutions: Toxicology Frequently Asked Questions, http://www.labcorpsolutions.
com/toxicfaq.html (last visited Feb. 5, 2007).
3. EcstasyData.org: Data Frequently Asked Questions, http://www.ecstasydata.org/
about-data-faq.php#gcms (last visited Feb. 5, 2007).

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