What is probable cause, and why should we care?: The costs, benefits, and meaning of individualized suspicion

Law and Contemporary Problems

Volumn 73, Issue 3, 2010, Pages 145-210

  Taslitz, Andrew E ^a  

^a HOWARD UNIVERSITY   (United States)

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EID: 78649962765     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (395)

1. United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) ("[Individualized suspicion is usually a prerequisite to a constitutional search or seizure.").
2. See Andrew E. Tasltiz, Foreword, 73 LAW & CONTEMP. PROBS. i, i-ii (Summer 2010).
3. See Maryland v. Pringle, 540 U.S. 366, 372-73 (2003) ("'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' and that the belief of guilt must be particularized with respect to the person to be searched or seized.") (quoting McCarthy v. De Armit, 99 Pa. 63, 69 (1881), and citing Ybarra v. Illinois, 445 U.S. 85 (1979)).
4. See Tracy Maclin, The Pringle Case's New Notion of Probable Cause: An Assault on Di Re and the Fourth Amendment, 2004 CATO SUP. CT. REV. 395, 410-12 (summarizing the history of the individualized-suspicion requirement); id. at 411 ("It is a fair summary of the history of the Fourth Amendment to say that the provision reflected the Framers' desire to control the discretion of ordinary law enforcement officers and to eliminate governmental intrusions lacking particularized suspicion") (emphasis added).
5. See also ANDREW E. TASLITZ, RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868 258-59 (2006) (summarizing history's teachings concerning the individualized-suspicion requirement).
6. Cf. Andrew E. Taslitz, Myself Alone: Individualizing Justice through Psychological Character Evidence, 52 MD. L. REV. 1, 3-30 (1993) (explaining the social-science and philosophical literature defining the "individualized justice" principle in substantive and evidentiary criminal law-a principle conceptually indistinguishable from the "individualized suspicion" aspect of probable cause).
7. See TASLITZ, supra note 4, at 258-59 (making a similar point);.
8. Maclin, ("Americans have rightly believed that an individual should not be judged solely on the basis of the company that he keeps. Fourth Amendment law has embraced a similar norm.").
9. Terry v. Ohio, 392 U.S. 1, 27 (1968), first articulated the "reasonable suspicion" standard and described the standard as to frisks as involving an officer's having "reason to believe that he is dealing with an armed and dangerous individual" (emphasis added). Terry noted as well that "due weight must be given, not to [the officer's] inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id.
10. In Alabama v. White, 496 U.S. 325, 330 (1990), the Court explained, reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. See also United States v. Sokolow, 490 U.S. 1, 7 (1989) (remarking that the level of suspicion for reasonable suspicion "is considerably less than proof of wrongdoing by a preponderance of the evidence" and less than a "fair probability that contraband or evidence of a crime will be found"-"fair probability" being the definition of the quantum of evidence necessary to proving probable cause).
11. CM.A. McCauliff, Burdens of Proof: Degrees of Belief Quanta of Evidence, or Constitutional Guarantees?, 35 VAND. L. REV. 1293, 1325 (1982) (summarizing a survey of federal judges quantifying reasonable suspicion as an average certainty of thirty-one percent).
12. 129 S. Ct. 2633 (2009).
13. A Ninth Circuit panel affirmed. Redding v. Safford Unified Sch. Dist. No. 1, 504 F.3d 828 (9th Cir. 2007). But sitting en banc, the Ninth Circuit reversed, finding a Fourth Amendment violation under law "clearly established" at the time, thus denying qualified immunity and reversing summary judgment as to Wilson, though upholding summary judgment as to other defendants on other grounds. Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071 (9th Cir. 2008) (en banc).
14. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009).
15. Id. at 2641 ("The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it.").
16. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633,2642 (2009).
17. See infra II.A (defining "individualized suspicion").
18. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009).
19. The Court did suggest at several points that its relatively vigorous examination of evidence of individualized suspicion that contraband was in Savana's underwear might be attributed to the highly intrusive nature of the strip search. For example, "[W]hen the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justifications in suspected facts, general background possibilities of criminal conduct fall short...." Redding, 129 S. Ct. at 2642 (emphasis added). This statement might be read as meaning that when searches of young students are not by definition extremely intrusive, mere "general background possibilities"-what I have here called "generalizations"-might be sufficient. See id. ("Here, the content of the suspicion failed to match the degree of the intrusion.").
20. See, e.g., Richards v. Wisconsin, 520 U.S. 385 (1987) (requiring reasonable suspicion that knocking and announcing police presence before executing a warrant would be futile or dangerous, or that it would inhibit the effective investigation of the crime).
21. See Redding, 129 S. at 2643.
22. See ANDREW E. TASLITZ, MARGARET L. PARIS & LENESE HERBERT, CONSTITUTIONAL CRIMINAL PROCEDURE 400-18 (3d ed. 2007) (defining "special needs" and "administrative" searches). Though the definition of "primary objective programmatic purpose" is unclear, and the details of the debate not worth pursuing here, see Andrew E. Taslitz, A Feminist Fourth Amendment?: Consent, Care, Privacy, and Social Meaning in Ferguson v. City of Charleston, 9 DUKE J. GENDER L. & POL'Y 1 (2002), for a stab at its definition.
23. See TASLITZ, PARIS & HERBERT, supra note 35, at 402-05, 408-18, 442-48 (summarizing case law). The Court has also found one seizure-briefly stopping cars to see if anyone had witnessed a recent hit-and-run-to be administrative, even though its objective was to investigate crime, because the persons stopped were not those suspected of that crime. See Illinois v. Lidster, 540 U.S. 419 (2004).
24. See TASLITZ, PARIS & HERBERT, supra note 35, at 419-23 (probationers and parolees), 429-31, 436-39 (roadblocks), 407 ( "junkyard" search case).
25. See id. at 372-79, 448-68 (searches incident to arrest and consent searches).
26. 392 U.S. 1 (1968).
27. See TASLITZ, PARIS & HERBERT, supra note 35, at 380-81, 408, 419-20 (explaining, for example, the Court's holdings extending the reasonable-suspicion inquiry to certain "protective sweeps of residences" for dangerous persons when an arrest is made there, fairly invasive searches of school children's bodies, and searches of probationers' and parolees' homes).
28. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 80 (2001) (noting individualized suspicion is generally dispensed with only in special needs and related cases); Chandler v. Miller, 520 U.S. 305, 309 (1997) (describing the "category of constitutionally permissible suspicionless searches" as "closely guarded").
29. 547 U.S. 843 (2006).
30. Id. at 857-58 (Stevens, J., dissenting).
31. Id. at 860 (Stevens, J., dissenting).
32. Samson v. California, 547 U.S. 843, 860 (2006) (Stevens, J., dissenting).
33. Id. at 841 (Stevens, J., dissenting).
34. Id. at 866 (Stevens, J., dissenting).
35. Id. at 865 (citing the majority opinion, 547 U.S. at 856, and citing Terry v. Ohio, 392 U.S. 1, 19, 29 (1968)).
36. See Illinois v. Wardlow, 528 U.S. 119 (2000).
37. See id. at 126-39 (Stevens, J., dissenting)
38. Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elian to the Internment, 70 FORDHAM L. REV. 2257, 2294-300 (2002).
39. See David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric Versus Lower Court Reality Under Terry v. Ohio, 72 ST. JOHN'S L. REV. 975 (1998).
40. See Jessica Ward, Do the Clothes Make the Man?: Implications of a Witness' Status in the Determination of Probable Cause, 28 FORDHAM URB. L.J. 2005 (2001).
41. See Simon Stern, Constructive Knowledge, Probable Cause, and Administrative Decisionmaking, 82 NOTRE DAME L. REV. 1085 (2007).
42. See Maclin, supra note 4 (reviewing the case law on guilt by association and concluding that, in a post-Maryland v. Pringle, 540 U.S. 366 (2003), world, the Court embraces such guilt). For a discussion of Pringle's facts and reasoning, see TASLITZ, PARIS & HERBERT, supra note 35, at 189-94.
43. See, e.g., Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951 (2003).
44. See Llaguno v. Mingey, 763 F.2d 1560, 1565-66 (7th Cir. 1985) (en banc) (opinion authored by Richard Posner)
45. United States v. Soyka, 394 F.2d 443, 452-53 (2d. Cir. 1968) (Friendly, J., dissenting)
46. Albert Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227, 245-56 (1984)
47. Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. MICH. J.L. REFORM 465, 503-05 (1984)
48. Lerner, supra note 59, at 1015-25
49. William Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2137-43, 2185 (2002).
50. See Lerner, supra note 59, at 1015-21 (summarizing these thinkers' views and adding Lerner's own).
51. Cf. 16A AM. JUR. Const. Law §467 & nn.12-13 (2010) (describing case law on constitutional free speech as embodying a "constitutional policy" reflecting a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials")
52. Andrew E. Taslitz, Search and Seizure History as Conversation: A Reply to Bruce P. Smith, 6 OHIO ST. J. CRIM. L. 765 (2009) (articulating an extended defense of the roles of history and numerous other data sources in crafting constitutional policy under the Fourth Amendment, a constitutional "conversation" that partly defines American peoplehood).
53. See, e.g., Chandler v. Miller, 520 U.S. 305, 318, 322 (1997) (holding that overriding the normal preference for individualized suspicion requires state demonstration of an interest sufficiently "important," "vital," and "substantial," a test not met by a justification that "diminishes personal privacy for a symbol's sake").
54. See TASLITZ, PARIS & HERBERT, supra note 35, at 7-25 (summarizing the various data sources used in constitutional interpretation).
55. FREDERICK SCHAUER, PROFILES, PROBABILITIES AND STEREOTYPES x (2003) (quoting WILLIAM BLAKE, ANNOTATIONS TO SIR JOSHUA REYNOLD'S DISCOURSES (1808)).
56. See id. at 19-21; see also WILLIAM JAMES, PRINCIPLES OF PSYCHOLOGY 209 (1890) ("[T]he highest ethical life of the mind consists at all times in the breaking of rules which have grown too narrow for the actual case.").
57. See SCHAUER, supra note 65, at 55-56.
58. See id. at 56-58. But see Sallyanne K. Sullivan, Banning the Pit Bull: Why Breed-Specific Legislation Is Constitutional, 13 U. DAYTON L. REV. 279 (1988) (praising pit-bull ordinances).
59. See SCHAUER, supra note 65, at 65-66.
60. Id. at 68-69. As Schauer recognizes, however, a broad array of philosophers, lawyers, and feminists vehemently reject his conclusion. See, e.g., Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990) (feminist and law professor)
61. see also JONATHAN DANCY, MORAL REASONS (1993) (philosopher)
62. See SCHAUER, supra note 65, at 68-69.
63. See id. at 68-69, 96 (using "smaller rather than larger" stereotypes language while insisting that stereotypes are sometimes better at predicting than seemingly more-individualized analyses).
64. See id.; cf. infra text accompanying notes 65-75 (summarizing Schauer's arguments concerning the relative error rates of particulars versus generalities).
65. See SCHAUER, supra note 65, at 69 (noting that when we engage in a seemingly individualized analysis of a pit bull's behavior, "we are not doing anything fundamentally different from what we do when we make a prediction based on this dog's being a pit bull").
66. HONEY, I SHRUNK THE KIDS (Buena Vista Pictures 1989).
67. My description of Honey, I Shrunk the Kids is not only of what the movie depicted but also of what it could have depicted given the movie's premise. The "could haves" are inspired by Jonathan Swift's Gulliver's Travels.
68. See generally MICHAEL S. GAZZANIGA, HUMAN: THE SCIENCE BEHIND WHAT MAKES US UNIQUE (2008) (arguing for the uniqueness and complexity, especially the social complexity, of the human animal).
69. See ANDREW E. TASLITZ, RAPE AND THE CULTURE OF THE COURTROOM 134-37 (1999).
70. See id. at 135, explaining, [H]arm to the individual harms the group. We partly define ourselves by our group affiliations. Are we black or white? Jewish or Christian? Republican or Democrat? Our attitudes, beliefs, and assumptions are in part shaped by the groups with which we identify. Gender...is certainly at the core of self-identity. Our sense of being 'male' or 'female' and what we believe that means are central to who we are. Although all individuals are unique, some part of how we express ourselves draws on group self-concepts as 'man' or 'woman.'
71. See infra text accompanying notes 333-82.
72. See J.D. Lee & Barry A. Lindahl, Liability for Wild and Domestic Animals, in 4 MODERN TORT LAW: LIABILITY AND LITIGATION § 37:5 (2d ed. 2009).
73. Alexandra Stanley, New York Acts to Lift Pit Bull Controls, N. Y. TIMES, March 12, 1991, at B1.
74. See SCHAUER, supra note 65, at 70.
75. Id. at 69-70 ("This alternative does appear to diminish the extent of predictive generalization, for by restricting only those dogs already determined to have committed an attack it eliminates the possibility of over inclusiveness, at least if we continue to assume no mistakes in the process of determining which dogs are guilty.").
76. See id. at 125 ("If it turns out that the coarser (and thus broader) generalization fares better on the benefit-cost analysis, the argument for its representing a case of fundamental injustice is much weaker once we see that the only plausible replacement is a finer (and thus narrower) generalization.").
77. See STEVEN I. FRIEDLAND, PAUL BERGMAN & ANDREW E. TASLITZ, EVIDENCE LAW AND PRACTICE 90-94 (3d ed. 2007). PRACTICE 90-94 (3d ed. 2007).
78. See SCHAUER, supra note 65, at 94-95, 179, 317 n.16 (defining and illustrating "base rates").
79. See FRIEDLAND, BERGMAN & TASLITZ, supra note 95, at 91
80. Taslitz, Myself Alone, supra note 5, at 65-72 (analyzing the "predictive power" of character traits).
81. See FRIEDLAND, BERGMAN, & TASLITZ, supra note 95, at 91, 96 (discussing analogous gang members example).
82. See id. at 159-64 (summarizing the character evidence rules in the Federal Rules of Evidence as generally barring evidence of character to prove conduct but containing a variety of exceptions, qualifications, and complexities).
83. See Taslitz, Myself Alone, supra note 5, at 65-72.
84. See FRIEDLAND, BERGMAN & TASLITZ, supra note 95, at 9-94 (summarizing the cost-benefit analysis underlying the character evidence rules).
85. See TASLITZ, PARIS & HERBERT, supra note 35, at 199-200 (analyzing Fourth Amendment law concerning the use of character evidence to prove probable cause).
86. SCHAUER, supra note 65, at 105-06.
87. See Taslitz, Myself Alone, supra note 5, at 24-30.
88. See SCHAUER, supra note 65, at 65-70.
89. See supra notes 91-94 and accompanying text.
90. See SCHAUER, supra note 65, at 7, 11-13.
91. This example is mine but is inspired by a discussion of the New Jersey police in DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK 53-60 (2003).
92. See infra text accompanying notes 271-72 (discussion of the "ratchet effect").
93. See SCHAUER, supra note 65, at 47.
94. There are over 42,000 commercial-airline pilots in the United States, see id. at 122, and the Federal Aviation Administration (FAA) has at least implicitly concluded that the cost of periodically testing them all far exceeds any benefits, see id. at 126.
95. See SCHAUER, supra note 65. at 122-23 (arguing that individualized medical testing of every commercial-airline pilot would likely still result in significant numbers of false positives and false negatives concerning the ability of each tested pilot to fly safely); id. at 53-54 (arguing that all error-correction systems introduce their own error rates and give the correctors discretion that inevitably results in disparities among decisions involving seemingly similar circumstances; such disparities create the appearance of arbitrariness).
96. An approach in the middle of the generalizing spectrum would be that, rather than testing all pilots, we test only those over a certain age. See id. at 127. Yet this approach still is a far stretch from the individualized end of the spectrum and has thus far been rejected by the FAA "as too risky to public safety because the available tests produce too many false negatives and because certain age-related correlates cannot be identified in advance by any existing test." Id. at 128. The FAA's solution, therefore, has simply been to mandate pilot retirement at age sixty. See id. at 108.
97. See GARY B. MELTON, JOHN PETRILA, NORMAN G. POYTHRESS & CHRISTOPHER A. SLOBOGIN, PSYCHOLOGICAL EVALUATION FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS (2d ed. 1997)
98. Thomas R. Litwack, Actuarial Versus Clinical Assessments of Dangerousness, 7 PSYCH., PUB. POL'Y, & L. 409 (2001). Schauer describes these authors as representative of "occasional dissenting voices." SCHAUER, supra note 65, at 318 n.19. However, these voices are consistent with the most recent state of the research and are, in any event, the voices I find most persuasive.
99. See CHRISTOPHER A. SLOBOGIN, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE WITH MENTAL DISABILITY OF LIFE AND LIBERTY 111, 312 n.30 (2006).
100. See SCHAUER, supra note 65, at 169, 181 (at ports of entry, in certain street-level narcotics offenses, and planned terrorist bombings of planes).
101. See HARRIS, supra note 115, at 73-90. Schauer himself agrees that much racial profiling is also likely spurious, despite his insistence that some racial profiling is likely nonspurious.
102. See SCHAUER, supra note 65, at 177-81.
103. See SCHAUER, supra note 65, at 96, 177-81, 189-90.
104. See id. at 173. Schauer observes as well that the visibility of race may, on the other hand, also sometimes give it more salience and thus more weight than it deserves, see id. at 188-89, and that there may sometimes be good policy reasons for excluding race as a consideration even when it is nonspurious. See id. at 197-98. Moreover, many professionals, including police officers, can err in their judgments simply because of overconfidence in their accuracy and underappreciation of base rates. See id. at 318 n.20.
105. See generally SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE, 1950-1990 (1993).
106. The Fourth Amendment speaks in broad, grand language meant more to evoke majesty than effect clarity: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV.
107. See Mark D. Rosen, Our Non-uniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community, 77 TEX. L. REV. 1129, 1142 (1999).
108. See id. at 1142-43. Schauer has himself written an enlightening analysis of the rules-versus-standards distinction. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 104 & n.35 (1991).
109. See Rosen, supra note 139, at 1142-43.
110. See, e.g., ROBERT J. MARTINEAU & MICHAEL B. SALERNO, LEGAL, LEGISLATIVE, AND RULE DRAFTING IN PLAIN ENGLISH 79 (2005) ("When commentators speak of intentional or purposive ambiguity, and especially when they say it may be desirable, what they are talking about is vagueness, leaving it up to administrative agencies or the courts to work out the precise parameters of the term.").
111. See, e.g., CRAIG BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION (1993).
112. Think about the problem, for example, of drafting legislation governing protecting the confidentiality of telephone calls in a world, not too long past, that had neither heard nor thought of "Skype," which permits making phone calls via the internet. Moreover, legislation may embrace breadth for political reasons, even when concrete eventualities can be foreseen "as a way of glossing over controversies for which consensus is not reached." MARTINEAU & SALERNO, supra note 144, at 95. This approach is common because "the participants in the legislative process do not easily concede defeat and prefer to declare partial victory." Id.
113. Consider the Internal Revenue Code.
114. See MARTINEAU & SALERNO, supra note 144, at 95-96, 109.
115. See id., at 95-96 (noting that legislatures may make the policy choice to leave interpretive discretion in, for example, the hands of administrative agencies or courts).
116. Indeed, leading criminal-procedure scholar Craig Bradley complained about just this problem in a study done some sixteen years ago. See BRADLEY, supra note 145. The Court's continuing expansion of police discretion in the years since Bradley first published his book is by now largely undisputed. See, e.g., Tracey Maclin, United States v. Whren: The Fourth Amendment Problem with Pretextual Traffic Stops, in WE DISSENT: TALKING BACK TO THE REHNQUIST COURT: EIGHT CASES THAT SUBVERTED CIVIL LIBERTIES AND CIVIL RIGHTS 90, 101 (Michael Avery ed., 2009) ("By allowing police officers to use any traffic violation as a subterfuge to conduct an arbitrary and unjustified narcotics investigation, the Court has given police officers across the nation virtually unchecked discretion to interfere with the liberty and privacy of any motorist.").
117. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
118. See TASLITZ, PARIS & HERBERT, supra note 35, at 197-200.
119. 462 U.S. 213 (1983).
120. See id. at 230-39; ELLEN PODGOR ET AL., MASTERING CRIMINAL PROCEDURE: POLICE 52-58 (2010) (explaining Gates and its reasoning and significance).
121. See Gates, 462 U.S. at 237-38
122. PODGOR ET AL., supra note 154, at 52-58.
123. See Herring v. United States, 129 S. Ct. 695 (2009).
124. See supra notes 54-56 and accompanying text.
125. See supra notes 52-54 and accompanying text.
126. See supra notes 35-41 and accompanying text.
127. Certainly this is the view of many officers, who "feel that their job is so difficult, so dangerous, and so singular that no one who does not also wear the uniform can possibly understand it and that no civilian should sit in judgment of the actions of a police officer." DAVID A. HARRIS, GOOD COPS: THE CASE FOR PREVENTIVE POLICING 86-87 (2005). This distrust of civilians is, I believe, fundamentally misplaced.
128. See SAMUEL WALKER, THE NEW WORLD OF POLICE ACCOUNTABILITY 8 (2005) ("It is a basic principle of a democratic society that the police should be answerable to the public"). Yet, as a descriptive matter, police do retain, and will vigorously defend, ample discretion.
129. See HARRIS, supra, at 131 ("Most officers do nearly all their work unsupervised, only sporadically reporting in to their sergeants or dispatchers and only rarely encountering a supervisory officer on the street."). Continues Harris, "Anything that intrudes on officer autonomy-a policy or directive from the precinct commander or headquarters, a new law, or a court decision-becomes a bone in the throat of the rank-and-file officer." Id. at 131-32. As a normative matter, the police's retaining significant discretion is probably a wise thing so long as it is supplemented with mechanisms for guiding that discretion and holding police accountable for its proper exercise. See generally WALKER, supra.
130. See HARRIS, supra note 160, at 94 ("There is still 'no substitute for judgment. You must be engaged as a supervisor' with your officers. If you are...you'll be able to tell which officers with higher-than-average arrests or searches and seizures are doing their jobs properly and which ones are not.") (quoting Pittsburgh, Pennsylvania, Police Commander Linda Barone).
131. See TASLITZ, PARIS & HERBERT, supra note 35, at 185-86, 197-200 (describing the many flexible factors to be weighed in deciding whether each Aguilar-Spinelli prong has been met).
132. See HARRIS, supra note 160, at 94 ("The aim is not to command but to guide generally."). Harris elaborates, Departmental policies crafted by members of the police department for members of the police department have almost automatic legitimacy among the rank and file who must obey them. They are more likely to be implemented, and more likely to be followed (even when unpopular) than pronouncements on police behavior that come from other institutions, such as courts or legislative bodies. That is why formal departmental policies concerning accountability and other aspects of preventive policing are essential. Policies describe the contours of proper conduct by setting out the general parameters of how police officers should respond to situations they face repeatedly. Id. at 94; cf WALKER, supra note 160, at 31 (noting that court decisions, especially those rooted in constitutional law, can have only a limited impact on police behavior, partly because "so many critical aspects of routine policing fall outside the purview of any court decision defining constitutional standards," and that, when they do fall within constitutional law's purview, the Court "lacks the institutional capacity to ensure compliance with its own decisions on a day-to-day basis"). This does not mean, of course, that constitutional law decisions have no impact on police, but it does suggest that the Court is well-advised to craft a regulatory scheme that creates incentives for other institutions to join in the process of implementation.
133. See Andrew E. Taslitz, The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule, 76 MISS. L.J. 483 (2009) (illustrating one such scheme).
134. See Taslitz, Expressive Fourth Amendment, supra note 163, at 552-75.
135. See PODGOR ET. AL., supra, note 154, at 21-27.
136. See Maclin, supra note 150, at 101 ("History shows that the Framers believed that the best way to guard against arbitrary and unjustified governmental intrusions was to control the discretion of law enforcement officers.").
137. See Fabio Arcila Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U. PA. J. CONST. L. 1 (2007) (arguing that magistrates during the post-Revolutionary and immediate post-Fourth Amendment periods largely deferred to law-enforcement judgments concerning probable cause).
138. Compare WALKER, supra note 160, at 49-51 (arguing that the Court's modern Fourth Amendment jurisprudence has done much to professionalize police departments), with Thomas Y. Davies, A Hard Look at What We Know (And Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, AM. B. FOUND. RES. J. 611 (1983) (summarizing studies, including those critical of the exclusionary rule).
139. See RANDY E. BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW 1-25 (2000) (explaining the pervasive problem of imperfect knowledge and the frequent superiority of "local knowledge").
140. See SCHAUER, supra note 65, at 103-04.
141. See HARRIS, supra note 160, at 95, 156 (discussing high-speed chases, "[c]hasing crooks," and responding to 911 emergencies as among the standard tasks of policing).
142. See SCHAUER, supra note 65, at 103-04.
143. Here I am talking specifically about such generalizations' being used in making judgments about probable cause or reasonable suspicion. "Profiles" are often touted as introducing science into the probable-cause and reasonable-suspicion decisions, but in practice, few profiles have empirical support, and most leave police with unfettered discretion while creating the false impression of the opposite.
144. See, e.g., TASLITZ, PARIS & HERBERT, supra note 35, at 353-60
145. Sharon L. Davies, Profiling Terror, 1 OHIO ST. J. CRIM. L. 45 (2003).
146. In areas of policing outside the Fourth Amendment, such as eyewitness identifications and interrogations, empirical data supporting nonspurious generalizations is already slowly starting to improve police investigative practices. See AMERICAN BAR ASSOCIATION, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY: REPORT OF THE ABA CRIMINAL JUSTICE SECTION'S AD HOC INNOCENCE COMMITTEE TO ENSURE THE INTEGRITY OF THE CRIMINAL PROCESS (2006). Although these areas are generally governed by the due-process clauses and the Fifth Amendment's privilege against self-incrimination, the results of these procedures can, of course, help to establish probable cause by providing evidence of the wrongdoer's identity. See TASLITZ, PARIS & HERBERT, supra note 35, at 710-15, 869-76. Some empirically supported, nonspurious generalizations may thus be available to aid police in the individualized-suspicion judgment in those jurisdictions that have fully adopted the new investigative techniques and best practices dictated by these recent developments in cognitive psychology.
147. See SCHAUER, supra note 65, at 7.
148. See infra text accompanying notes 293-332.
149. See generally RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).
150. See SCHAUER, supra note 65, at 3, 6, 22, 68, 126, 155-98.
151. See sources cited supra note 173.
152. See Andrew E. Taslitz, Proving the Unprovable, 22 CRIM. JUST. 70, 70-76 (2007) (reviewing CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE, AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS (2007)) [hereinafter Unprovable]
153. Andrew E. Taslitz, A Feminist Approach to Social Science Evidence: Foundations, 5 MICH. J. GENDER & L. 1, (1998) (providing philosophical support for Slobogin's position) [hereinafter A Feminist Approach].
154. See Taslitz, Unprovable, supra note 180.
155. See Taslitz, A Feminist Approach, supra note 180, at 13-46.
156. See id. at 37-38 & n.170.
157. See TASLITZ, PARIS & HERBERT, supra note 35, at 196.
158. See Maclin, supra note 4, at 411.
159. See supra text accompanying notes 128-31.
160. See Andrew E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the Politics of Science, 4 CARDOZO PUB. L. POL'Y, & ETHICS J. 271, 296-323 (2006) (discussing the social science on good deliberation in most contexts, though applying it to prosecutors).
161. See id. at 284. Rather than repeat here the detailed supporting analyses of deliberation, transparency, and accountability that I have done elsewhere, see, e.g., id. at 296-323; Andrew E. Taslitz, Racial Auditors and the Fourth Amendment: Data with the Power to Inspire Political Action, 66 LAW & CONTEMP. PROBS. 221 (Summer 2003), I have interwoven discussion of these benefits into this article's larger discussions of other social advantages of an individualized-suspicion requirement. See infra II-IV.
162. See Andrew E. Taslitz, Police are People Too: Cognitive Obstacles to Police Getting the Individualized Suspicion Judgment Right, OHIO ST. J. CRIM. L. (forthcoming 2010).
163. See SCHAUER, supra note 65, at 22-23.
164. See infra text accompanying notes 262-83.
165. See SCHAUER, supra note 65, at 151.
166. See id. Schauer also makes a political argument in favor of certain generalizations. Specifically, he insists that a political community-a nation-by definition requires emphasizing generality, namely of shared constitutional norms, goals, and values-over difference and particularity. See id. at 278-300. On this point Schauer is partly right (though I see both commonality and difference as essential to nationhood and the supporting system of rights).
167. See Andrew E. Taslitz, Respect and the Fourth Amendment, 93 J. CRIM. L. & CRIMINOLOGY 15, 70-80 (2003).
168. See SCHAUER, supra note 65, at 89.
169. See id. See also BEYOND A REASONABLE DOUBT (Larry King ed., 2006) (collecting essays, many of which argue that this anti-expected-value principle underlies the beyond-a-reasonable-doubt burden of persuasion in criminal cases).
170. See SCHAUER, supra note 65, at 89.
171. See Andrew E. Taslitz, Wrongly Accused Redux: How Race Contributes to Convicting the Innocent: The Informants Example, 27 SW. U.L. REV. 1076 (2009).
172. By "political morality" I mean those moral principles governing how the state should treat its citizens and vice versa. Such principles are normative, are implicit in much constitutional interpretation, and bring with them many practical benefits that flow from enhanced governmental legitimacy. See generally Taslitz, Respect, supra note 199 (exploring how such principles operate in interpreting the Fourth Amendment). I distinguish the benefits of political morality from another important class of benefits-those enhancing the accuracy of police judgments. This latter class of benefits I have touched on thus far and will do so repeatedly again here, but a fuller exploration of them may be found at Taslitz, Police are People Too, supra note 190.
173. See NORMAN J. FINKEL, NOT FAIR: THE TYPOLOGY OF COMMONSENSE UNFAIRNESS 43-58 (2001).
174. See, e.g., SARAH MAXWELL, THE PRICE IS WRONG: UNDERSTANDING WHAT MAKES A PRICE SEEM FAIR AND THE TRUE COST OF UNFAIR PRICING 6-7 (2008).
175. See MAXWELL, supra note 211, at 7. For fuller explanations of the meaning of "social norms"-itself a contested concept-see ERIC A. POSNER, LAW AND SOCIAL NORMS 1-8 (2000). See also Michael Hechter & Karl-Dieter Opp, Introduction, in SOCIAL NORMS xi, xiii (Michael Hechter & Karl-Dieter Opp eds., 2001) ("As there is no common definition of social norms, there can be little agreement about how to measure them.").
176. See MAXWELL, supra note 211, at 7.
177. On fair-pricing economics generally, see MAXWELL, supra note 211, summarizing the major findings in the field. On the psychology of fairness generally, see HANDBOOK OF JUSTICE RESEARCH IN LAW (Joseph Sanders & V. Lee Hamilton eds. 2001).
178. For a summary of market-based thinking, see CHARLES E. LINDBLOM, THE MARKET SYSTEM: WHAT IT IS, HOW IT WORKS, AND WHAT TO MAKE OF IT (2002).
179. For a summary of social-contract-based thinking, see Andrew E. Taslitz, Plugging into the Fourth Amendment's Matrix, 22 CRIM. JUST. 26, 27-29 (2007).
180. See TASLITZ, supra note 4, at 3.
181. This idea is embodied in ordinary contract law in the term "consideration." See Peter A. Alces, Suretyship and the Statute of Frauds, ch. 4, in THE LAW OF SURETYSHIP AND GUARANTY § 4:2 (2007).
182. Cf. United States v. Mezzanatto, 513 U.S. 196, 208 (1995) (describing prosecutors as buyers and defense counsel as sellers in a "market for plea bargains").
183. See generally STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (1999) (defending the theory that taxes are the necessary price for citizenship).
184. Law-and-economics scholars will readily understand the idea that risks and lost opportunities, including to exercise rights, can be understood as costs. See WILLIAM D. ROHLF, INTRODUCTION TO ECONOMIC REASONING (6th ed. 2005).
185. See TASLITZ, PARIS & HERBERT, supra note 35, at 317, 332-53 (explaining Terry stops).
186. See MAXWELL, supra note 211, at 73-74.
187. For a discussion of the benefits of direct means of expressing voice via the legal system whenever feasible, see TASLITZ, supra note 84, at 134-51.
188. See MAXWELL, supra note 211, at 76 (making a similar point but using college textbooks as an example).
189. See ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970) (exploring when economic actors choose "exit" and when "voice" to get what they want and the connection between the two options).
190. See ROBERT PINDYCK & DANIEL RUBINFELD, MICROECONOMICS 102-30, 277-79 (7th ed. 2008).
191. See TASLITZ, PARIS & HERBERT, supra note 35, at 332-42.
192. See DAVID D. FRIEDMAN, LAW'S ORDER: WHAT ECONOMICS HAS TO DO WITH LAW AND WHY IT MATTERS 26, 36, 39-44, 49, 54-60, 163-64 (2001) (defining "transaction costs" and explaining their significance).
193. This observation is true as a practical matter and as part of the American social contract. See TASLITZ, supra note 4, at 44, 79, 243-61 (explaining the role of the police in the American social contract).
194. See, e.g., Hiibel v. Sixth Judicial Dist. Ct, 542 U.S. 177 (2004) (upholding under the Fourth Amendment Hiibel's arrest for failing to reveal his name to an officer upon request); Maryland v. Pringle, 540 U.S. 366 (2003) (upholding arrest for drug possession when cocaine was found hidden behind an upraised armrest in the back seat next to the back-seat passenger, but when there was no evidence that Pringle, the front-seat passenger, knew of the cocaine's presence and when the officer threatened to arrest all three of the car's occupants unless someone confessed).
195. See BLACK'S LAW DICTIONARY 342 (8th ed. 2004) (defining an "adhesion contract" as one to which a "consumer...adheres...with little choice about the terms").
196. There can be "anticipatory" probable cause-probable cause to believe that someone will commit a crime in the future. See United States v. Grubbs, 547 U.S. 90 (2006) (recognizing anticipatory probable cause and articulating a test for when it has been met); see also TASLITZ, PARIS & HERBERT, supra note 35, at 265-69.
197. See Jed Rubenfeld, Privacy's End, in LAW AND DEMOCRACY IN THE EMPIRE OF FORCE 207, 215-18 (H. Jefferson Powell & James Boyd White eds., 2009) (making a similar argument for the autonomy-enhancing advantages of individualized suspicion).
198. See Terry v. Ohio, 392 U.S. 1 (1968).
199. See TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURTS xiii-xvi, 4, 54-57, 82-84, 101, 106-07 (2002) (procedural justice and resulting enhanced governmental legitimacy both contribute to "acceptance," that is, to voluntary obedience to law)
200. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153 (2002) (summarizing empirical data demonstrating that people are likely to readily bow to police officer "requests" to consent to a search).
201. See TYLER & HUO, supra note 242, at 70, 202 (explaining that understanding why police officers act as they do promotes motive-based trust, and that stop-and-frisks are perceived as fair when officers give credible reasons for their actions and avoid demeaning the person stopped).
202. See Tom R. Tyler, Racial Profiling, Attributions of Motive, and the Acceptance of Social Authority, in SOCIAL CONSCIOUSNESS IN LEGAL DECISIONMAKING: PSYCHOLOGICAL PERSPECTIVES 64-66, 70-71 (Richard L. Wiener et al. eds., 2007) (policing decisions seen as unfair because they lack neutrality, consistency, factuality, or dignity, increasing disobedience to law and cooperation with the police).
203. See MAXWELL, supra note 211, at 77-78.
204. Transparency's benefits extend beyond promoting perceptions of procedural justice, as law professor David Harris explains: Without transparency-institutional openness to public scrutiny-real accountability cannot exist, and the lifeblood of transparency is the wide dissemination of information. A government agency that functions in the shadows, without public oversight, is an open invitation for abuse. The more crucial the agency's mission and the greater its powers, the graver the danger posed by a lack of transparency. Police departments have always resisted this idea, but what will probably most surprise those who work in policing is that disseminating information about their performance can benefit them-in very substantial ways. HARRIS, supra note 160, at 118-19. The benefits for the police include error reduction and enhanced community cooperation. See id. at 119-20; see also Taslitz, supra note 189, at 284-94 (explaining how transparency promotes a more "honor-based" police organizational culture); Taslitz, supra note 188, at 284 (explaining that transparency is a prerequisite to accountability).
205. see generally Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107 (2000) (extolling the virtues of widespread police transparency)
206. See FED. R. CRIM. P. 41.
207. See FED. R. CRIM. P. 16, 41.
208. See TASLITZ, PARIS & HERBERT, supra note 35, at 237-38 (explaining the warrant application process); FED. R. CRIM. P. 41(a) (declaring that a law-enforcement officer or the attorney for the government are authorized to prepare a warrant affidavit).
209. The Sixth Amendment right to counsel applies at all "critical stages" after formal adversarial proceedings have begun. See TASLITZ, PARIS & HERBERT, supra note 35, at 869, 885-87 (supporting this proposition and illustrating the active role defense counsel can play at suppression hearings).
210. See id. at 226 (noting that for most suppression issues involving warrantless searches or seizures, the prosecution has the burden of proof; failing to meet it with evidence and arguments results in the prosecution's losing the motion).
211. See id. at 750-51 (illustrating the process of impeachment at suppression hearings).
212. Unconvincing reasons or incredible stories will lead to loss of the suppression motion, including not only exclusion of the evidence wrongly seized but also likely to include any evidence obtained as the poisonous "fruit" of that tainted constitutional tree. See id. at 226. Police lies under oath at such hearings can result in perjury prosecutions. See Christopher Slobogin, Testifying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037 (1996).
213. See MAXWELL, supra note 211, at 79-80.
214. See TYLER & HUO, supra note 242, at 58, 80, 83, 163.
215. See TASLITZ, PARIS & HERBERT, supra note 35, at 194-95.
216. On the other hand, while not labeling such actions and motivations "reasonable"-indeed condemning them, as in Terry v. Ohio, 392 U.S. 1, 14-15, 22 (1968)-the Court has held that officers' subjective motivations are irrelevant to the Fourth Amendment reasonableness question
217. See TASLITZ, PARIS & HERBERT, supra note 35, at 476-78; Whren v. United States, 517 U.S. 806 (1996).
218. But see Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333 (1998) (condemning the Court's reasoning in Whren and explaining how officer motivations can fit into an "objective" inquiry). Still, the Court is likely to view, at least in its public pronouncements, "reasonable", officer beliefs or actions as those informed by the evidence fairly evaluated by an officer untainted by racial hatred or stereotypes-in short, to embrace the ideal of officer impartiality.
219. See TASLITZ, PARIS & HERBERT, supra note 35, at 196-200 (probable cause and reasonable suspicion must be based on trustworthy evidence rather than on speculation or unarticulated hunches). My argument here, of course, turns on both the existence of an individualized-suspicion mandate and the availability of a serious remedy for that mandate, matters determined in a public proceeding. I accordingly see the individualized-suspicion concept's social value as inseparably linked to the availability of remedies via sound adjudicative processes. To gut the remedies or their related processes is thus to simultaneously gut individualized suspicion of much of its meaning and value.
220. See MAXWELL, supra note 211, at 73-74.
221. This example is a variation on examples, rooted in empirical data and social and economic theory, in BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE 22-26, 129-39 (2007).
222. [T]he ordinary incapacitation effects are likely to be relatively small. Generally, they will be washed out by the effect of any change in offending: there is no incapacitation effect if you imprison a recidivist versus an ordinary citizen once the rates of offending have equalized. But what if the offending rates do not equalize? What if offenders are entirely irrational and completely unresponsive to policing? Id. at 28.
223. See id. at 27-28 (suggesting that the resources spent on mass incarceration could have been "better spent on other crime-fighting practices, such as increased police presence, more drug-treatment programs, free abortions, mandatory military conscription, or other policies").
224. A recent report on quality-of-life policing in New York City made this point starkly: The most recent NYPD data confirms that the police disproportionately target New Yorkers of color for stops and frisks. In 2006 alone, the NYPD stopped, questioned, or frisked over 508,540 people, a 500% percent increase over the previous year. Over 80% of those stopped and frisked were Black or Latino (or Latina), even though these groups make up only 53.6% of the NYC population. Only 10% of stops led to summonses or arrests, thereby undermining any claim that racial disparities in stops and frisks are the result of differential rates of involvement in criminal activity rather than race-based policing practices. The numbers of stops are increasing, as well.
225. Marc Krupanski, Andrea Ritchie, Justice Committee & People's Justice, Backgrounder on Racial Profiling and Police Brutality Against People of Color in New York City Prepared for the Special Rapporteur on Racism on the Occasion of His 2008 Mission to the US, available at http://ccrjustice.org/files/2008%20Report%20on%20NYPD%20Racial%20Profiling%20&%20Brutality%20to%20UN%20SR%20on%20Racism.pdf (2008). The Rand Committee Corporation, relying on data in the NYPD's electronic database that is not available to the public, reached even bleaker conclusions, finding that 89% of persons stopped by police in 2006 were people of color. Once stopped, 45% of Blacks or Latino (or Latina) suspects were frisked, compared to only 29% of Whites, even though Whites were 70% more likely than Blacks to carry a weapon. See Greg Ridgeway, Analysis of Racial Disparities in the New York Police Department's Stop, Question, and Frisk Practices, RAND Corporation (2007).
226. See HARCOURT, supra note 264, at 24 ("Whether the different offending rates are due to different socioeconomic backgrounds, to different histories, cultures, or [to] education, nonspurious profiling rests on the accurate assumption that members of one group offend more than those of another, holding everything else constant").
227. It is important to stress the importance of comparative inelasticities. If rates of crime reduction (elasticity relative to policing) for Blacks are lower than those for Whites, all else being equal, then stopping more Blacks but fewer Whites raises overall crime. See id. at 23-24. But this example assumes that, before profiling, black crime rates were indeed higher than white rates, for, without that assumption, profiling rests on a spurious association. Yet, argues Harcourt, if poor Blacks at the starting point offend more "because they are socioeconomically more disadvantaged, then it would follow logically that they may also have less elasticity of offending to policing because they have fewer alternative job opportunities." Id. at 24. This is sound, informed speculation, but we currently have no hard data, "no good idea how the elasticities compare." Id. But, insists Harcourt, given informed speculation to the contrary and the high potential individual and social costs of race-based (or other group-based) searches and seizures, there is "no good reason" to assume alternative elasticities and absolute numbers in which profiling is more beneficial than harmful to society as a whole-and this is true even if police initially seem to achieve higher "hit rates" for evidence of criminality by instituting profiling. See id. at 24, 123-24.
228. See id. at 24 ("Because of the different elasticities and the fact that the profiled are usually small minorities, the raw increase in offending among the nonprofiled group will be greater numerically than the raw decrease in offending of the profiled group.") (emphasis added).
229. See id. at 147-48. This example is altered slightly for clarity and to use a more savory species of fish.
230. See MAXWELL, supra note 211, at 74.
231. Procedural justice is generally the far more significant contributor to decision acceptance than is distributive justice. See TYLER & HUO, supra note 242, at 50-51, 54-57. Nevertheless, distributive justice also promotes outcome acceptance. See id. Perhaps more importantly, in the law-enforcement context, it is hard to separate out these effects in a practical way, even if their relative contributions can be analyzed statistically. This is so because, for example, the same police behavior-here, racial profiling-can lead to both unfair distributive justice and unfair procedural justice or motive-based trust perceptions, as illustrated above. Moreover, this problem shows why I often prefer the lens of the fair-price-theory economist to the justice psychologist, though they are both close cousins. The economist views equity not simply in terms of favorable outcomes or their distribution but also as getting a good enough outcome for the price paid. See supra notes 262-62 and accompanying text. The higher civil-liberties price paid by profiled groups must be weighed against the relative benefits they receive from the new style of policing, benefits likely to be seen by them as small, especially given their frequent preference for community-based healing approaches ("restorative justice") over more militaristic, retributive approaches to the problem of crime.
232. See Andrew E. Taslitz, Fourth Amendment Federalism and the Political Silencing of the American Poor, 85 CHICAGO-KENT L. REV. 277, 293-95 (2010). Finally, the policing context seems to me one in which resentments at any sort of injustice are often likely to run high.
233. See Tom R. Tyler, Afterword, in TOM R. TYLER, WHY PEOPLE OBEY THE LAW 269, 269-88 (new afterword ed., 2006).
234. See id.; see generally BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T. OF JUSTICE, UNDERSTANDING COMMUNITY POLICING: A FRAMEWORK FOR ACTION (1994)
235. DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK 117-28 (2002) (discussing the damage to minority-group trust and willingness to cooperate with the police and to the criminal-justice system's perceived legitimacy)
236. David A. Harris, Racial Profiling Revisited: "Just Common Sense in the Fight Against Terror," 17 CRIM. JUST. MAGAZINE 36-41, 59 (2002) (summarizing empirical data).
237. See Taslitz, supra note 208, at 1118-21 (discussing the "bystander effects").
238. Tom R. Tyler & E. Allan Lind, Procedural Justice, in HANDBOOK OF JUSTICE RESEARCH IN LAW 84 (Joseph Sanders & V. Lee Hamilton eds., 2001) (emphasis added).
239. See supra text accompanying notes 3-4, 49-50.
240. See Tyler & Lind, supra note 280, at 84 (noting that "particularistic attention" is central to procedural justice).
241. See HARCOURT, supra note 264, at 215-23.
242. For a more extensive analysis of the concept of retributive justice
243. see Andrew E. Taslitz, The Inadequacies of Civil Society: Law's Complementary Role in Regulating Harmful Speech, 1 MARGINS 305 (2001).
244. See MAXWELL, supra note 211, at 75.
245. See Taslitz, supra note 199, at 50-58.
246. See Taslitz, supra note 285, at 313-22, 338-39.
247. See supra text accompanying notes 276-76 (noting reduced citizen willingness to cooperate with the police, a form of "exit" from unfair or ineffective institutions); HIRSCHMAN, supra note 232 (explaining when participants in institutions choose "voice" (that is, complaint) over exit as a strategy for seeking correction of those institutions' flaws).
248. See Taslitz, supra note 189, at 244-48.
249. See GEOFFREY CUPIT, JUSTICE AS FITTINGNESS 1-2, 15-28 (1996) (describing "respect" and "justice" as part of the same family of concepts, with respect being the broader idea).
250. See JOHN E. COONS & PATRICK M. BRENNAN, BY NATURE EQUAL: THE ANATOMY OF A WESTERN INSIGHT 13, 116-22 (1999) (contrasting moral goodness); see also MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 11-41 (1998) (arguing that the idea of human rights is "ineliminably religious"); WILLIAM F. SCHULTZ, IN OUR OWN BEST INTEREST: HOW DEFENDING HUMAN RIGHTS BENEFITS US ALL 17-31 (2001) (offering pragmatic arguments for accepting the ideas of human rights and equality).
251. see also MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 11-41 (1998) (arguing that the idea of human rights is "ineliminably religious")
252. WILLIAM F. SCHULTZ, IN OUR OWN BEST INTEREST: HOW DEFENDING HUMAN RIGHTS BENEFITS US ALL 17-31 (2001) (offering pragmatic arguments for accepting the ideas of human rights and equality).
253. See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1697 (1992).
254. See, e.g., JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, & INTENT 13-56, 73-75 (1999) (recognizing privacy, property, and free movement as universal rights)
255. cf. Martha Minow, Equality and the Bill of Rights, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 118, 118-28 (Michael J. Meyer & William A. Parent eds., 1992) (discussing how human dignity and equality are embraced in the Bill of Rights, especially in the protections of the First Amendment).
256. "Fittingness" is an idea that captures an underlying similarity among theorists writing about respect, dignity, insult, and humiliation. See CUPIT, supra note 293, at 2-4, 13-23, 46-48, 60-63, 92. I thus refer to them all as "fittingness theorists." On the importance of diversity in life choices, see Jean Hampton, Retribution and the Liberal State, 5 J. CONTEMP. LEGAL ISSUES 117, 140-41 (1994) (defending a "perfectionist liberalism" in which the state must promote "value pluralism," so that citizens have plenty of options and opportunities to choose from in creating their lives).
257. See Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 746-65 (1999) (making similar point)
258. see also AVISHAI MARGALIT, THE DECENT SOCIETY 135-38, 140-42, 153, 158-61 (1996). Margalit is what I call a "negative" fittingness theorist, focusing on what conduct we must avoid if we do not wish to insult others. See id. at 9, 112, 115, 137. Cupit is a "positive" fittingness theorist, focusing on what conduct entitles us to receive respect. See CUPIT, supra note 293, at 2-4, 6, 15-18, n.10.
259. See Andrew E. Taslitz, The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions, 65 LAW & CONTEMP. PROBS. 125, 152 (Spring 2002).
260. See id.; JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 8-9, 12, 218-19 (2000) (originating the "mask" terminology).
261. See Taslitz, supra note 299, at 153-55.
262. See id. at 155, 158. As law professor Lawrence Lessig puts it, We all deserve to live in separate communities. Privacy, or the ability to control data about yourself, supports this desire. It enables these multiple communities and disables the power of one dominant community to norm others into oblivion. Think, for example, about a gay man in an intolerant small town. LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 152-53 (1999). On the definition of "personality," see Taslitz, supra note 5, at 31-34.
263. See PATRICIA BOLING, PRIVACY AND THE POLITICS OF THE INTIMATE LIFE 79 (1996) ("A third reason to respect the individual's privacy about intimate-life decisions has to do with the need to value and respect diversity. Scrutinizing an individual's intimate practices and demanding conformity to an implicit standard promotes homogeneity and undercuts and devalues differences. Assuming an essentialized identity based on intimate affiliations or decisions likewise renders the diversity of people's experiences invisible and places normalizing pressure on different or dissenting group members."). See generally JUDITH WAGNER DECEW, IN PURSUIT OF PRIVACY: LAW, ETHICS, AND THE RISE OF TECHNOLOGY 66 (1997) (stating that privacy marks a zone of interests beyond the legitimate concerns of others to protect against pressures to conform or to reveal one's vulnerabilities)
264. FERDINAND DAVID SCHOEMAN, PRIVACY AND SOCIAL FREEDOM (1992) (asserting that freedom from scrutiny and judgment permits us to talk, think, and act in ways that express our unique individual identities).
265. See, e.g., ANITA ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 52 (1987) ("[T]he exercise of privacy-promoting liberties enhances persons and personal relationships in ways that cannot be ignored by those who feel ethically constrained to treat persons as more than things."); see also ROSEN, supra note 301, at 8 (discussing how control over which masks we reveal promotes intimate relationships).
266. See ROSEN, supra note 301, at 8.
267. See Taslitz, supra note 5, at 24-30 (defining individualized justice); Taslitz, supra note 298, at 746-58 (elaborating on the meaning and significance of individualized justice).
268. See Taslitz, supra note 299, at 155, 170-71.
269. JOHN STUART MILL, ON LIBERTY 13, 129 (1859; photo reprint, 2002).
270. See Rubenfeld, supra note 240, at 207, 209-11.
271. See id. at 211; cf. Tracey Maclin, The Decline of the Right to Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990).
272. See Rubenfeld, supra note 240, at 220-21.
273. See id. at 208-09. Rubenfeld develops his idea of personal life at greater length in Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101 (2008).
274. See Taslitz, supra note 285, at 313-55 (comparing the social roles of the civil and criminal-justice systems and concluding that the latter is the ultimate assessor of culpability).
275. See RICHARD G. SINGER, CRIMINAL PROCEDURE II: FROM BAIL TO JAIL 255-300 (2005) (summarizing the sentencing options available in the criminal-justice system).
276. See generally INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind eds., 2002) (outlining the harms done to the defendant, his family, friends, neighborhood, and society at large that were not part of his announced sentence, but necessarily accompany it).
277. See Taslitz, supra note 285, at 356 ("The exclusion of the offender from being a full member of the moral-political community (literal exclusion as well, in the case of imprisonment) has a powerful impact in reaffirming social norms.").
278. See id. at 313-55 (defending this very point but also noting that tortious civil liability, unlike criminal liability, is more about blame being placed by individuals than by the entire community).
279. See, e.g., Taslitz, supra note 199, at 33-41 (examining the arrest of a mother in front of her two children for the crime of driving without a seat belt); see also Atwater v. Lago Vista, 532 U.S. 318 (2001) (setting forth and analyzing the facts that were the basis for the driving without a seatbelt discussion above); cf. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997) (discussing the criminal law's influence on social norms as well as law's influence more generally).
280. See supra text accompanying notes 5-7, 166, 303-07, 317.
281. See supra text accompanying notes 5-33, 50.
282. See Rubenfeld, supra note 240, at 216-19, 221. For a dystopian vision of the impact of such autonomy invasion taken to the extreme.
283. see Andrew E. Taslitz, Privacy as Struggle, 44 SAN DIEGO L. REV. 501 (2007)
284. See supra text accompanying notes 5-6; Terry v. Ohio, 392 U.S. 1, 21 (1968) (requiring reasonable suspicion to be based upon "specific and articulable" facts). Although the Court generally uses the "specific and articulable" facts language in connection with "reasonable suspicion," surely those same requirements-but in more robust form-must inhere in the more protective "probable cause standard."
285. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 132 (1988) ("To the extent that procedure includes provisions that assure that decisions will be based on accurate information and on well-informed or expert opinion, procedural fairness will be enhanced.").
286. See, e.g., TASLITZ, supra note 4, at 258-590\: [A]ny unduly group-based suspicions risk treating people like fungible property rather than as unique human beings, a form of treatment meant to die with slavery. On the other hand, the Reconstruction Congress was as concerned with whites' rights as blacks'. The black experience under slavery underscores the value of the individualized-justice principle to human dignity, but it is a principle that must be revitalized for all persons, regardless of race. Id. at 259; cf Taslitz, supra note 208, at 1121-45 (examining how flawed informants' evidence at the search-warrant stage can lead not only to wrongful arrests but to wrongful convictions).
287. See Taslitz, supra note 299, at 158-74 (illustrating how group-based suspicion and reliance on assumption over trustworthy evidence has limited the modern autonomy of gays, the poor, and racial minorities, simultaneously insulting them all).
288. Norman J. Finkel, But It's Not Fair!: Commonsense Notions of Unfairness, 6 PSYCH., PUB. POL'Y, & L. 898, 910 (2000).
289. See generally JUDITH RICH HARRIS, NO TWO ALIKE: HUMAN NATURE AND HUMAN INDIVIDUALITY (2006) (defending this proposition).
290. See TASLITZ, supra note 84, at 134-35; ROY BAUMEISTER, THE CULTURAL ANIMAL: HUMAN NATURE, MEANING, AND SOCIAL LIFE 377 (2005) (discussing the importance of group-belongingness); DAVID BERREBY, US AND THEM: UNDERSTANDING YOUR TRIBAL MIND 16 (2005) (noting that group affiliation is "an absolute requirement for being human").
291. See BAUMEISTER, supra note 338, at 107-09 (noting that belongingness promotes happiness, mental and physical health, and that "[g]roups can share resources, care for sick members, scare off predators, fight together against enemies, divide tasks so as to improve efficiency, and contribute to survival in many other ways"); see also id. at 378 ("People may have evolved to recognize the presence of an enemy group and to seek to form bonds and alliances for their own protection.").
292. See Taslitz, Feminist Approach, supra note 180, at 23 ("[O]ur social identity-our sense of who we are and what we are worth-is intimately bound up with our group memberships."); see also TASLITZ, supra note 84, at 135 ("Although all individuals are unique, some part of how we express ourselves draws on group self-concepts....").
293. See HARRIS, supra note 312, at 193-95.
294. See id. at 8-9 (explaining that, although we exaggerate the consistency in other people's behavior, individual differences-character traits-are real).
295. See id. at 165, 174-75; BERREBY, supra note 338, at 123-25 (describing the importance of gathering information about particular individuals over time to improve our ability to mind-read them).
296. See HARRIS, supra note 312, at 165.
297. See id. ("Obligations must be repaid, duplicity remembered, compatible companions sought out, obnoxious ones avoided, those with higher status deferred to.").
298. See id. at 209 ("To compete with one's groupmates is to strive for status...."); TASLITZ, supra note 84, at 134-37 (explaining that different groups have different social statuses, so the status of an individual is inescapably also linked to the status of his group).
299. See TASLITZ, supra note 84, at 112.
300. See ALAIN DE BOTTON, STATUS ANXIETY vi-viii (2004).
301. See HARRIS, supra note 333, at 224-26.
302. See id. at 226; ROBERT W. FULLER, ALL RISE: SOMEBODIES, NOBODIES, AND THE POLITICS OF DIGNITY 15 (2006) ("But, unlike a chicken coop, modern human societies comprise thousands of different hierarchies, and a person at the bottom of one may be at the top of another. The worst bowler on the company team may be the CEO. The college dropout may be a billionaire.").
303. See HARRIS, NO TWO ALIKE, supra note 333, at 221, 225.
304. See HARRIS, supra note 333, at 227, 239, 247.
305. See id. at 239 (declaring that the status system is social information that a person uses "to plot a long-term strategy that will involve direct competition only in those areas of endeavor in which the individual has a hope of succeeding").
306. See id. at 218-19, 238-40, 247.
307. Cf. id. at 239 (emphasizing that individuals use status information to place themselves in situations in which they believe they have the most hope of improving their status by improving their actual or perceived performance).
308. See Andrew E. Taslitz, Willfully Blinded: On Date Rape and Self-Deception, 28 HARV. J.L. & GENDER 381, 438 (2005).
309. Cf. KIERON O'HARA, TRUST: FROM SOCRATES TO SPIN 14 (2004) ("What does trust buy you? It gets you out of a state of uncertainty.... If someone has promised to help you, and you trust her, then you can plan on that basis.")
310. see also PAUL SEABRIGHT, THE COMPANY OF STRANGERS: A NATURAL HISTORY OF ECONOMIC LIFE 54 (2004) ("[Humans have evolved] through selection for what is sometimes called 'reciprocity,' namely, an instinctive inclination to do unto others as they have already done unto you. If others have treated you well, you treat them well in return, but if they have hurt you, you hurt them back. An eye for an eye certainly, but also a gift for a gift.").
311. See HARRIS, supra note 333, at 218-19.
312. See supra text accompanying notes 342-64. In addition to these forces, of course, genetic tendencies, current environment, life experience, and happenstance all combine to make us uniquely who we are. See HARRIS, supra note 333, at 238-40, 247.
313. See WILLIAM JAMES, THE VARIETIES OF RELIGIOUS EXPERIENCE 29-30 (1978) (based on lectures delivered in Edinburgh 1901-1902).
314. See JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 131-42 (2001).
315. See Taslitz, A Feminist Approach, supra note 180, at 34-36.
316. See id.; JEROME BRUNER, MAKING STORIES: LAW, LITERATURE, LIFE 63-89 (2002) (discussing the narrative creation of the self).
317. See Theodore R. Sarbin, The Narrative as a Root Metaphor for Psychology, in NARRATIVE PSYCHOLOGY: THE STORIED NATURE OF HUMAN CONDUCT 3, 11 (Theodore R. Sarbin ed., 1986).
318. See RUBENFELD, supra note 368, at 137; accord BRUNER, supra note 370, at 15 ("[W]e know that narrative in all its forms is a dialectic between what was expected and what came to pass.").
319. See RUBENFELD, supra note 368, at 137.
320. See id. Nor does this mean that the narrative can be based on fictions. Though our memories are partly constructed, we do try to create a coherent sense of self-an interpretation of who we are-based on our best beliefs about our own experiences as "out there" facts, such as whether we had a dog as a child, what persons attended our Bar-Mitzvah, and what our grades were like in school.
321. See Taslitz, supra note 180, at 5-6, 12-34 (distinguishing between "out there" facts and interpretive facts). The same sort of analysis is true with "peoplehood": it is defined by a narrative moving over time but is not therefore a fiction.
322. See RUBENFELD, supra note 368, at 45-48, 131-42, 145-51.
323. See RUBENFELD, supra note 368, at 45-48, 131-42, 145-51.
324. See RONALD B. TOBIAS, 20 MASTER PLOTS AND HOW TO BUILD THEM iii-iv (1993).
325. GEORGE A. AKERLOF & ROBERT J. SHILLER, ANIMAL SPIRITS: HOW HUMAN PSYCHOLOGY DRIVES THE ECONOMY, AND WHY IT MATTERS FOR GLOBAL CAPITALISM 51 (2009).
326. Cf. TYLER COWEN, CREATE YOUR OWN ECONOMY: THE PATH TO PROSPERITY IN A DISORDERED WORLD 31-42 (2009) (discussing the economics of storytelling).
327. See Rubenfeld, supra note 240, at 220 (emphasis in original).
328. See id. at 220; Taslitz, A Feminist Approach, supra note 180, at 18-23, 34-46.
329. See Zenon Bankowski, In the Judgment Space: The Judge and the Anxiety of the Encounter, in THE UNIVERSAL AND THE PARTICULAR IN LEGAL REASONING 25, 25-26 (Zenon Bankowski & James MacLean eds., 2006).
330. See John Bell, The Institutional Constraints on Particularism, in THE UNIVERSAL AND THE PARTICULAR IN LEGAL REASONING, supra note 384, at 43 (arguing that accountability in the context of judicial reasoning requires a public statement demonstrating good reasons for a decision rooted in case-specific particulars).
331. See Bankowski, supra note 384, at 27-29, 33.
332. Cf Andrew E. Taslitz, Interpretive Method and the Federal Rules of Evidence: A Call for a Politically Realistic Hermeneutics, 32 HARV. J. LEG. 329, 399-401 (making a similar point concerning interpreting the Federal Rules of Evidence).
333. See Bankowski, supra note 384, at 32.
334. Zenon Bankowski & James MacLean, Introduction, in THE UNIVERSAL AND THE PARTICULAR IN LEGAL REASONING, supra note 384, xi, xii.
335. See Bankowski, supra note 384, at 31 (relying on the ideas of Ludwig Wittgenstein).
336. See, e.g., MISHNA SANHEDRIN 4:5 ("Therefore was a single man [Adam] only created to teach you that if anyone destroys a single soul from the children of man, Scripture charges him as though he had destroyed a whole world."); see also ALAN DERSHOWITZ, THE GENESIS OF JUSTICE: TEN STORIES OF BIBLICAL INJUSTICE THAT LED TO THE TEN COMMANDMENTS AND MODERN LAW 55 (2000) ("Even the cost of one killing is incalculable.").
337. See Bankowski, supra note 384, at 31.
338. See KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH 3-6
339. See Taslitz, Democratic Deliberation, supra note 188, at 284 (discussing error-correction and accountability); see also Andrew E. Taslitz, The Jury and the Common Good: Fusing the Insights of Modernism and Postmodernism, in FOR THE COMMON GOOD: A CRITICAL EXAMINATION OF LAW AND SOCIAL NORMS 325-27 (Robin Miller ed., 2004) [hereinafter COMMON GOOD] (discussing republican theories of "creating" a common good by conversation versus liberal ones of "discovering" that common good); Taslitz, Racist Personality, supra note 298, at 765-77 (discussing the kind of citizen character required in a sound American conception of a "republic").
340. See infra text accompanying notes 404-06.
341. See Rubenfeld, supra note 240, at 216 (describing Mill's theory).
342. MILL, supra note 309, at 125.
343. See GREENAWALT, supra note 401, at 3-6 (describing Mill as one of the few originators of a school of free-speech thought now widely embraced by scholars and judges).
344. See TASLITZ, supra note 4, at 22, 71, 89, 147, 167, 190, 203-07, 226-29, 246, 248, 257, 287 nn.20, 23, 302 n.3, 287 n.23.
345. See supra text accompanying notes 293-332.
346. See, e.g., TASLITZ, supra note 4, at 207-25.
347. See generally Daniel Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV. 112 (2007) (arguing for a close connection between Fourth Amendment privacy and First Amendment free speech).
348. See GEORGE ORWELL, 1984 (1950).
349. See MARGARET ATWOOD, THE HANDMAID'S TALE (2006).
350. See MILL, supra note 309, at 21.
351. See generally Margaret Raymond, Rejecting Totalitarianism: Translating the Guarantees of Constitutional Criminal Procedure, 76 N.C. L. REV. 1193 (1998).
352. 333 U.S. 10 (1948).
353. 338 U.S. 25 (1949), overruled by Mapp v. Ohio 367 U.S. 643 (1961).
354. Harris v. United States, 331 U.S. 145, 171 (1947) (Frankfurter, J., dissenting); see also Raymond, supra note 419, at 1205, 1227.
355. See United States v. On Lee, 193 F.2d 306, 309, 317 (2d Cir. 1951) (Frank J., dissenting), aff'd 343 U.S. 747 (1952).
356. Brinegar v. United States, 338 U.S. 160, 180-81 (1949).
357. See Raymond, supra note 419, at 1210.
358. See Rubenfeld, supra note 240, at 220-24; IMMANUEL KANT, GROUNDWORK FOR THE METAPHYSICS OF MORALS 37 (Allen W. Wood ed. & trans., 2002) (1785) ("Act only in accordance with that maxim through which you can at the same time will that it become a universal law.").
359. See Rubenfeld, supra note 240, at 222.
360. See id. For a summary of the Fourth Amendment law on undercover agents, see TASLITZ, PARIS & HERBERT, supra note 35, at 118-20, 196-200, 221-24.
361. See Rubenfeld, supra note 240, at 223. Rubenfeld remarks, Were covert informants and police agents to become ubiquitous, a great deal more than a loss of privacy would ensue. The true loss would be born by everyone, including those who were never spied on (therefore suffering no actual governmental invasion of their privacy) and those who stopped saying anything personal to anyone else (therefore never suffering an exposure of anything private). A society with ubiquitous undercover agents is a secret police state. It is a state that deliberately seeks to destroy the security that people enjoy in their personal lives-the confidence that what ones does in personal life belongs to personal life and will not generally be known to public authorities. Id.
362. Cf Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026 (2003) (exploring the circumstances under which the cumulation of small incursions on rights can lead to a slippery slope in which rights slowly but ultimately substantially erode or die).
363. See id. at 210-18; TASLITZ, supra note 4, at 3, 4, 44, 55-61, 65, 67, 70-71, 76-83, 89, 177 (discussing the importance of "peoplehood" to understanding the Fourth Amendment).
364. See Rubenfeld, supra note 240, at 210-18; TASLITZ, supra note 4, at 260-63.
365. See supra text accompanying notes 311-30.
366. See, e.g., Kevin Robert Glandon, Bright Lines on the Road: The Fourth Amendment, the Automatic Companion Rule, the "Automatic Container" Rule, and a New Rule for Drug-or-Firearm-Related Traffic Stop Companion Searches Incident to Lawful Arrest, 46 AM. CRIM. L. REV. 1267, 1298-99 (2009) (arguing for elimination of any individualized-suspicion requirement for certain drug-or firearm-related traffic stops). But see Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV. 483 (1995) (arguing that the state should bear a heavy burden when seeking to depart from the individualized-suspicion mandate). My approach differs from Clancy's in that I focus on the policy reasons justifying presumptive individualized suspicion, while he focuses on the historical justifications, thus making our visions distinct but complementary. I also explore here in detail the meaning of suspicion's being "individualized," a task Clancy does not undertake.
367. This argument-that a reduced number of searches and seizures means freeing the guilty-is but another way of saying that the individualized-suspicion requirement unduly burdens law enforcement. See, e.g., Glandon, supra note 447 (analyzing such a burden in certain types of traffic stops).
368. See ELLEN PODGOR, PETER J. HENNING & ANDREW E. TASLITZ, CRIMINAL LAW: CONCEPTS AND PRACTICE 4-7 (2009) (summarizing the purposes of the criminal law, including the types of deterrence).
369. See supra sources cited notes 447-47.
370. See ALAN M. DERSHOWITZ, PREEMPTION: A KNIFE THAT CUTS BOTH WAYS 128 (2006).
371. Cf. SCHAUER, supra note 65, at 99-238 (discussing a cell-phone analogy that prompted this example).
372. See Taslitz, supra note 190.
373. See generally ROBERT JACKALL, STREET STORIES: THE WORLD OF POLICE DETECTIVES (2005) (describing detectives' investigative techniques in their own words).
374. Cf. TASLITZ, PARIS & HERBERT, supra note 35, at 402-03 (discussing fire-marshal "warrants" not based on traditional probable cause).
375. See supra text accompanying notes 109-35.
376. 528 U.S. 119 (2000).
377. Id. at 126; Terry v. Ohio, 392 U.S. 1 (1968).
378. Wardlow, 528 U.S. at 126.
379. See id. at 126 (Stevens, J., concurring in part and dissenting in part).
380. See id. at 132-35 & nn.10-11.
381. Illinois v. Wardlow, 528 U.S. 119, 132-33 (2000).
382. See id. at 130-34 & nn.5-6; Proverbs 22:3 (King James) ("A shrewd man sees trouble coming and lies low; the simple walk into it and pay the penalty.").
383. See Wardlow, 528 U.S. at 129 (Stevens, J., dissenting).
384. See id. at 129-30 & n.4; see also id. at 140.
385. See supra text accompanying notes 109-35.
386. See TASLITZ, PARIS & HERBERT, supra note 35, at 116-21
387. Orin Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009).
388. See ABA Standards for Criminal Justice: Government Access to Private Records, Draft Version 5.0 8-10 (2009).
389. See TASLITZ, PARIS & HERBERT, supra note 35, at 116-21.
390. See ABA Standards, supra note 479, at 1-8.
391. See supra text accompanying notes 210-446.
392. See ABA Standards, supra note 479, at 20.
393. See supra part III (detailing social benefits of individualized suspicion).
394. See ABA Standards, supra note 479, at 21-23.
395. See TASLITZ, supra note 4, at 59-60.