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Taking Warrants Seriously

69 Pages Posted: 13 Sep 2012  

Oren Bar-Gill

Harvard Law School

Barry Friedman

New York University School of Law

Date Written: September 13, 2012

Abstract

Courts and commentators are increasingly concerned about police misconduct — searches and seizures that fail to comply with Fourth Amendment protections. Current doctrine attempts to deter such misconduct with the threat of excluding unlawfully seized evidence. The remedy of exclusion is weak, however, in large part because judges only see cases in which the defendant obviously is guilty. Despite years of proposals, the alternative of money damages is largely unavailable. The problem is exacerbated because Fourth Amendment law is notoriously uncertain. The combination of these three factors results in ineffective deterrence of Fourth Amendment violations. We propose to replace the failed deterrence model with a stringent ex ante warrant requirement. We make a novel case for warrants based on findings from the social sciences. The Court, rather than continuously weakening the warrant requirement, should reverse course and set warrants as the centerpiece of the Fourth Amendment.

Suggested Citation

Bar-Gill, Oren and Friedman, Barry, Taking Warrants Seriously (September 13, 2012). Northwestern University Law Review, Vol. 106, Issue 4, 2012, Forthcoming; NYU School of Law, Public Law Research Paper No. 12-46; NYU Law and Economics Research Paper No. 12-29. Available at SSRN: https://ssrn.com/abstract=2145912

Oren Bar-Gill (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Barry Friedman

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

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