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.
In this Article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police but how law and public policy can best regulate the police. First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full "law of the police"--the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of [section] 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of nonjudicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.
TABLE OF CONTENTS INTRODUCTION I. THE CONVENTIONAL PARADIGM A. The Warren Court Origins of the Conventional Paradigm B. The Limits of the Conventional Paradigm 1. Courts Cannot Alone Interpret or Protect Constitutional Rights 2. Constitutional Rights Cannot Alone Protect Individuals Adequately from Police Intrusion II. THE CONVENTIONAL PARADIGM IN SCHOLARSHIP A. The Conventional Paradigm's Influence on Contemporary Scholarship B. New Trends in Scholarship and the Conventional Paradigm 1. New Extraconstitutional "Con Law" Scholarship 2. New Legal "Non Law" Scholarship III. BEYOND THE CONVENTIONAL PARADIGM: A NEW SCHOLARLY AGENDA FOR THE PROBLEM OF POLICING A. Harm-Efficient Policing B. The Neglected Law of the Police 1. The Example of Employment Law and Civil Rights Litigation 2. Categorizing the Law of the Police C. Comparative Institutional Analysis and the Problem of Policing CONCLUSION INTRODUCTION
Police officers are granted immense authority by the state to impose harm. They walk into houses and take property. They stop and detain individuals on the street. They arrest. And they kill. They do all these things in order to reduce fear, promote civil order, and pursue criminal justice. The legal problem presented by policing is how to regulate police officers and departments to protect individual liberty and minimize the social costs the police impose while promoting these ends.
The problem of regulating the police is complex. It requires influencing a vast number of officers operating in diverse institutional, demographic, and political conditions. It demands the involvement of local, state, and federal actors using legislative, judicial, and administrative tools. And it depends on empirical assessments, theoretical interpretations, and normative judgments that are widely contested. While courts and commentators have written extensively on the law governing the police, they have in recent decades mostly neglected the problem of regulating them. They have largely treated the legal problem of policing as limited to preventing the violation of constitutional rights and its solution as the judicial definition and enforcement of those rights. The problem of regulating police power through law has been shoehorned into the narrow confines of constitutional criminal procedure.
This conventional paradigm is necessarily inadequate to regulate the police. Despite doctrinal rhetoric to the contrary, constitutional law cannot alone balance individual and societal interests when they conflict. Instead, constitutional rights establish only deferential minimum standards for law enforcement, without addressing the aggregate or distributional costs and benefits of law enforcement or its effects on societal quality of life. Even within constitutional law, the judiciary alone cannot undertake the problem of policing. As the Supreme Court's constitutional criminal procedure doctrine suggests, empirical and causal analysis is central to both defining and protecting constitutional rights, yet courts have limited institutional capacity to engage in that analysis. In short, the public policy problems presented by the use of police power necessarily extend beyond constitutional law and courts. Protecting rights and balancing competing individual and social interests require a broader set of regulatory tools and institutions.
Of course, legal scholars have often been critical of aspects of the conventional paradigm, especially of its reliance on courts to protect individuals and communities from abuses of police power. Despite those criticisms, the paradigm continues to influence scholarly efforts to understand the problem and regulate the police effectively. Even scholars who have criticized the traditional approach continue to view the problem of policing principally through the lens of constitutional law. They therefore limit their analysis to constitutional methodologies and the subject matter of constitutional law. And while some recent work highlights nonconstitutional rules governing police conduct or utilizes the methodologies of social science to understand police conduct, it usually does so in service of either conclusions about constitutional doctrines or nonlegal analysis. In short, contemporary scholarship remains firmly grounded in the conventional paradigm. Scholars have yet to consider the full range of nonconstitutional legal questions at the core of the problem of policing.
The ongoing influence of the conventional paradigm has obscured some of the conceptual preconditions for effectively regulating the police. First, the paradigm limits the regulation of the police to the problem of identifying and enforcing constitutional rights. Yet the problem of regulating the police extends beyond constitutional law to ensuring that the benefits of policing are worth the harms it imposes, including harms not prohibited by the Constitution. The law should promote policing that effectively controls crime, fear, and disorder without imposing unjustifiable and avoidable costs on individuals and communities. Addressing the problem of policing therefore requires determining what harms policing produces, what kinds of policing are too harmful, and what kinds are harm efficient. Legal scholars and social scientists have yet to embrace this inquiry.
Second, courts have difficulty assessing the incentives affecting police officers, a task central to determining how to encourage police officers to conform their conduct to law. Scholars have studied many determinants and correlates of police conduct, but the conventional paradigm has encouraged the belief that constitutional criminal procedure is the primary legal influence on police officers and departments. In fact, nonconstitutional law plays a much greater role in influencing police officers than has previously been appreciated. While scholars have begun to consider nonconstitutional law governing the police, their efforts have been narrow. Scholars have not yet adequately considered the full web of federal, state, and local laws that govern the police outside of the context of criminal investigations. This neglect stymies existing efforts to regulate the police. Presently, for example, courts tailor their interpretation of [section] 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms.
Finally, courts lack the institutional capacity to undertake complex empirical analysis of policing or to constrain the police beyond identifying and enforcing constitutional rights. Because regulating the police requires such capacity, it is clear that courts cannot adequately regulate the police by themselves. Thus, regulating the police requires allocating responsibility among institutional actors to ensure a regime capable of intelligently choosing and efficiently promoting the best ends of policing. Yet the focus of scholarship remains on the courts, with little attention to the comparative roles, capacities, and incentives of nonjudicial institutions that can influence police conduct.
These neglected areas of inquiry--harm efficiency, the real law of the police, and comparative institutional analysis--suggest a new scholarly agenda that asks not how the Constitution regulates the police but how law and public policy can best regulate them. In this Article, I explore the development and limitations of the conventional paradigm and elaborate on this new agenda.
In Part I, I argue that courts alone...