What is Probable Cause, and Why Should We Care? The Costs, Benefits, and Meaning of Individualized Suspicion
Andrew E. Taslitz
American University - Washington College of Law
February 8, 2010
Law & Contemporary Problems, Forthcoming
The United States Supreme Court has often declared individualized suspicion to be at the heart of probable cause. Yet critics see this as a commitment in word more than deed.Other critics, primarily philosophers, so no real conceptual difference between generalized and individualized suspicion. Moreover, no one has seriously tried to define the term. This article seeks first to fill this definitional gap, second to argue that the philosophers are wrong, and third to catalogue the social benefits and costs of an individualized suspicion requirement, suggesting a more structured way to choose among types of individualized suspicion and when, if ever, to jettison all those types entirely. The article draws on philosophy, psychology, and a branch of behavioral economics - fair price theory - to make its point.
Number of Pages in PDF File: 94
Keywords: probable cause, reasonable suspicion, Fourth Amendment, fair price theory, Safford, storytelling theory, individualized suspicion, equity, transparency, accountability, spurious, nonspurious, generalization, individualize, individualization, particularize, costs, benefits, character, stop, frisk
JEL Classification: E30, H11, K, K14Accepted Paper Series
Date posted: February 11, 2010
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