Discussions about the use or abuse of drugs or of drug-testing are usually charged with a high degree of emotiveness and subjectivity. By the same token, additionally, writings on the subject of drug testing often pose peculiar problems of analysis and objectivity.
The purpose of this article is to explore and analyze some fundamental conceptual legal problems germane to a consideration of the legality of drug-testing in a democratic society which practices the rule of law and which places a high premium, in its normative scheme, on the principle of individual or personal liberty. The justification for this exercise lies primarily in the fact that in contemporary American society drug-testing is not only a reality, but raises issues both of immense legal complexity and practical significance.
This article approaches the subject from five perspectives. The first is that of constructing a factual substratum for the conceptual legal issues to be addressed. The second is that of identifying and isolating the critical issues for determination raised by the facts. The third is an analytical examination of those issues by reference to certain conceptual or juristic criteria. The fourth is to predict, by way of rationalization of existing legal principles, the probable judicial approach of the courts in resolving the issue of the legality of drug-testing if confronted with the task of pronouncing upon it. The fifth is to inquire whether judges can validly and legitimately apply juristic principles postulated by legal scientists to complex moral and social issues of the day.
"Drug-Testing: Some Fundamental Conceptual and Juristic Problems,"
Akron Law Review: Vol. 22
, Article 2.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol22/iss2/2