Explaining Legal Norm Transmission Using an Epidemiological Model: The Case of Employment Drug Testing.

摘要

In this thesis, I construct an epidemiological model to explain the transmission of legal norms governing drug testing in the workplace from the United States to Canada and their subsequent spread across the jurisprudence. Employment drug testing norms thus serve as both the starting point for a reflection on how norms spread and a case study for the empirical testing of a theoretical model.;This process of systematization is applied; extending a viral metaphor into an epidemiological model. After reviewing the literature on social epidemics, I set out those aspects of epidemiological theory that may be profitably transposed to the domain of law. I then operationalize the model by applying it to a data set composed of tribunal decisions (n=187) using computer assisted text analysis.;The results support the hypotheses generated by the model. 90% of decisions that cited American sources met the model's criteria for infection, compared to only 64% of those that didn't cite American sources. This supports the hypothesis of a common reservoir epidemic. Citation to those infected decisions was also positively correlated to infection: 87% of the citing population was infected, compared to only 53% of the remaining population that cited neither an American source nor one of the infected decisions that cited an American source. Similar results were obtained for third generation decisions. This supports the hypothesis of a serial-transfer epidemic subsequent to contact with the reservoir. Positive correlation to infection was also demonstrated for particular subpopulations hypothesized to be act as points of infection and to a hypothesized vector.;In the conclusion, I argue that it is only after we have gone through the process of constructing a model and seen the strengths and limits of its application, that we have access to the full scope of the insights into the role of metaphors and models in the explanation of legal phenomena.;I begin with the premise that many explanations of legal change -- such as transplant and harmonization -- are grounded in metaphors, and then argue that such metaphors work by inviting the hearer to make comparisons between the familiar and the unfamiliar. When this process of comparison is systematized, the metaphor becomes a model.;KEYWORDS: legal theory, epidemiology, virus, memetics, discourse analysis, qualitative research methods, labour law, drug testing, human rights, right to privacy.