Faculty Publications

Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept of “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested.

An essay is presented on protestors' policing and police discretion in enforcing criminal law against protestors. It offers a history of Occupy Wall Street or Occupy protests, which reflects upon the unlawful actions of the New York Police Department (NYPD). It also sheds light on the impact of discretion in the policing of protests, with special focus on both overenforcement and underenforcement of criminal law.

This Article speaks directly to prosecutors and calls on them to voluntarily implement internal practices to avoid racialized jury selection in criminal cases. The Article proceeds in three parts. Part I builds the case that prosecutors should value a race-neutral jury selection process. Part II sets forth the institutional pressures and cognitive biases that might lead even well-intentioned prosecutors to exercise peremptory challenges in a race-based manner. Part III concludes by calling on prosecutors to take steps to neutralize their own exercises of peremptory challenges, including the collection and publication of both individual and office-wide statistics reflecting the numbers of peremptory challenges exercised and the race of the affected venirepersons and resulting juries.