Academic

Rosenthal on Mizner on Probable Cause

By Lawrence Solum

Lawrence Rosenthal (Chapman University - School of Law) has posted Probability, Probable Cause, and the Law of Unintended Consequences (Texas Law Review, Vol. 87, p. 63, 2009) on SSRN. Here is the abstract:

This brief essay responds to Max Mizner's article "Putting Probability Back into Probable Cause." The essay supports Professor Mizner's proposal for the use of empirical evidence of the success of a given investigating officer or investigative technique in assessing the existence of probable cause to search or seize, but offers a caveat. If an officer's "hit rate" becomes central to Fourth Amendment analysis, there is a serious danger of overdeterrence which, in turn, could lead to a dangerous escalation in violent crime. The essay offers some proposals for minimizing the risk of overdeterrence in an empirically-based regime of probable cause.

Full post as published by Legal Theory Blog on July 08, 2009 (boomark / email).