Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis
Candice T. Player
University of Pennsylvania Law School & the Department of Medical Ethics and Health Policy, Perelman School of Medicine at the University of Pennsylvania
American Journal of Law and Medicine, Vol. 40, Pg. 26, 2014
U of Penn Law School, Public Law Research Paper No. 14-17
In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues — not unlike law and economics — as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.
Number of Pages in PDF File: 60
Keywords: poverty law, health law & policy, public health, social welfare law, public assistance, drug testing, constitutional law, population-based legal analysis, Temporary Assistance to Needy Families, TANF, intrusiveness, privacy, reasonable suspicion of illegal drug useAccepted Paper Series
Date posted: April 18, 2014
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