What is Probable Cause, and Why Should We Care? The Costs, Benefits, and Meaning of Individualized Suspicion

Law & Contemporary Problems, Forthcoming

94 Pages Posted: 11 Feb 2010  

Andrew E. Taslitz

American University - Washington College of Law

Date Written: February 8, 2010

Abstract

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.

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, K14

Suggested Citation

Taslitz, Andrew E., What is Probable Cause, and Why Should We Care? The Costs, Benefits, and Meaning of Individualized Suspicion (February 8, 2010). Law & Contemporary Problems, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1549898

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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