The Reasonableness of Probable Cause

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current insistence on a “single standard” lacks historical support. Probable cause should be recast within a reasonableness framework, embracing the common sense view that not all searches equally trench on privacy concerns and not all crimes equally threaten the social order

Accommodations for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites?

A growing number of students in American higher education are being diagnosed as learning disabled and then using that diagnosis to secure beneficial accommodations, such as extra time on exams. These accommodations are often said to be mandated by the Americans with Disabilities Act (ADA). This Article challenges the premise that the ADA necessarily requires educational institutions to provide learning disabled students with any accommodations. The ADA defines disability as an impairment that substantially limits a major life activity. Whether one is substantially limited is determined with reference not to one\u27s innate abilities, but to the skills of the average American citizen. Thus, a learning disabled college or law student who fails to live up to his potential, and who reads slower than one would predict given his general mental aptitude, is not disabled as a matter of law, provided he reads at a level comparable to the average American. Legal requirements aside, it may be appropriate to accommodate learning disabled students, but it is increasingly difficult to distinguish the truly disabled from those simply claiming a disability to gain an advantage. The traditional touchstone of a medical diagnosis as learning disabled, which diverges importantly from the legal definition, is a substantial discrepancy between a person\u27s mental aptitude and academic achievement. Whatever scientific rigor such a diagnosis may once have had, it is now hopelessly indeterminate. Moreover, there is evidence that significant numbers of students, or at least those with the wherewithal and initiative to consult psychologists and lobby school administrators, can secure such an advantageous diagnosis. Drawing upon the concept of agency costs, this Article explores the tension between the interests of administrators of nonprofit educational entities and the interests of the entities themselves. Educational institutions are of course committed to ensuring fairness and academic integrity, but individual educators and administrators may not have sufficient personal incentives to scrutinize requests for accommodations or to tailor those accommodations narrowly to a student\u27s claimed learning disability

Calling a Truce in the Culture Wars: From Enron to the CIA

This Article compares and evaluates recent Congressional efforts to improve institutional “cultures” in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the “walls” that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one another and declined to share information. The way to improve their respective cultures, Congress determined, was to build up walls in the one case and to tear them down in the other. This Article expresses some skepticism, however, about these solutions. Building walls in the private sector increases transaction costs, which may outweigh any benefits in detecting fraud. With respect to the intelligence community, compartmentalization of information diminishes risks associated with double agents; redundancy of tasks may provide a safety margin; and segmentation of government agencies may guard against civil liberties violations as well as provide additional spurs to action. Furthermore, thriving firms in the private sector forge successful, though likely idiosyncratic, cultures designed to exploit business opportunities. Because the market is largely self-correcting, regulatory efforts to dictate a particular reorganization or cultural shift are probably unnecessary and possibly harmful. By contrast, the CIA, FBI, NSA, and all other government agencies operate without fear of bankruptcy, which is to say in the absence of penalties for deficient cultures (or rewards for successful ones). Nonetheless, efforts to re-structure government bureaucracies, nominally to re-make their cultures, should be regarded with caution. First, such efforts will almost inevitably be undertaken by political actors, whose motivations are at a minimum suspect. Second, even assuming the best of intentions and the utmost of human wisdom, central planners cannot forecast the untold costs and benefits to a major governmental reorganization. The Intelligence Reform Act’s overhaul of the intelligence community will have certain and substantial costs in the short-term, and very uncertain, if any, benefits in the long term

Reasonable Suspicion and Mere Hunches

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they relied upon specific, reasonable inferences, and not simply upon an inchoate and unparticularized suspicion or \u27hunch. \u27 Since Terry, courts have strained to distinguish reasonable suspicion, which is said to arise from the cool analysis of objective and particularized facts, from mere hunches, which are said to be subjective, generalized, unreasoned and therefore unreliable. Yet this dichotomy between facts and intuitions is built on sand. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, complex information about their environment and make sense of the world. The legal rules governing police conduct are thus premised on a mistaken assumption about human cognition. This Article argues that the legal system can defer, to some extent, to police officers\u27 intuitions without undermining meaningful protections against law enforcement overreaching. As a practical matter, the current legal regime substitutes palliative euphemisms for useful controls on police discretion. It forces police officers to prune what they say at suppression hearings, but it does little to change how they act on the streets of America. When an energetic police officer has a hunch that evil is stirring and action is imperative, the officer will simply act. Months will pass before a suppression hearing, and by then it will be a simple matter to reverse-engineer the objective reasons for the stop - e.g., I saw a bulge, or He made a furtive gesture. The legal system in practice rewards those officers who are able and willing to spin their behavior in a way that satisfies judges, while it penalizes other officers who are less verbally facile or who are transparent about their motivations. Politically accountable authorities should join the courts in monitoring police practices. And the focus should be less on what police say after the fact and more on what they do - that is, how successful police officers are in detecting criminals relative to the number of stops they make and how respectful officers are of all citizens

Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses

A German court recently convicted a minor Syrian official of abuses committed in Syria\u27s civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under universal jurisdiction, allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged today, this watershed produced barely a trickle of consequences. Notably, no former head of state has been prosecuted by another state under this rubric. Commentators have remarked upon the disappointing results but not offered much to account for them. This Article is the first to address this puzzle by situating universal jurisdiction, as a technical doctrine, in the context of its broader impulse, sometimes called transnational justice -or previously, cosmopolitan justice. The underlying claim is that otherwise rivalrous nation-states can and should affirm a broader commonality in prosecuting offenses universally acknowledged to be crimes against humanity. Although the idea has inspired human rights activists, it has failed to engage prosecutors. In analyzing the resulting pattern, this Article makes two central claims. First, the recurring failures of transnational justice cannot be explained by the project\u27s novelty. Centuries ago, the most prominent Enlightenment thinkers endorsed a version of cosmopolitan justice. It was later advocated as a doctrine that might justify interstate prosecutions within the United States. Such doctrines have never been embraced, however, by courts or even by prosecutors