The Exclusionary Rule Revisited

34 Pages Posted: 28 May 2020

See all articles by Nuno Garoupa

Nuno Garoupa

George Mason University - Antonin Scalia Law School, Faculty

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 25, 2020

Abstract

We revisit the economic theory of exclusionary rules. First, we show that more exclusion may induce enforcers to conduct more searches, contrary to the standard notion that more exclusion leads to fewer searches. Second, we identify and investigate the complexities that arise when enforcers may harass suspects (imposing significant costs without legal proceedings) instead of conducting legal searches. If one attempts to choose the optimal exclusionary rule naïvely (for example, by ignoring the possibility of harassment by enforcers), the chosen rule will exclude evidence more often than is optimal. We explore social welfare considerations and discuss policy implications based on our formal results.

Keywords: Exclusionary rule, innocent suspects, harassment, deterrence

JEL Classification: K0, K4

Suggested Citation

Garoupa, Nuno and Mungan, Murat C., The Exclusionary Rule Revisited (May 25, 2020). George Mason Law & Economics Research Paper No. 20-18, Available at SSRN: https://ssrn.com/abstract=3610844 or http://dx.doi.org/10.2139/ssrn.3610844

Nuno Garoupa (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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