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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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