The Problem of Policing
University of Virginia School of Law
March 1, 2012
Michigan Law Review, Vol. 110, p. 761, 2012
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation — a fact largely invisible in contemporary scholarship. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits.
Number of Pages in PDF File: 58
Keywords: policing, 1983, exclusionary rule, Fourth Amendment, police misconduct, Miranda, criminal procedure
Date posted: November 10, 2011 ; Last revised: July 11, 2013