NCJ Number
131712
Journal
American Criminal Law Review Volume: 27 Issue: 3 Dated: (1990) Pages: 473-524
Date Published
1990
Length
52 pages
Annotation
Fourth amendment law is discussed in terms of the distinction between its substance and the processes by which it is implemented. The appropriateness of using a cost-benefit approach to fourth amendment jurisprudence and the relevant costs and benefits that should be considered in setting the bounds of fourth amendment protection of privacy interests are also discussed.
Abstract
Current fourth amendment law is a confusing mess that has become more confusing as the result of the United State's Supreme Court's misapplication of the balancing approach based on the criterion of reasonableness. However, a cost-benefit approach could produce coherence, making fourth amendment law both internally consistent and socially optimal by thoughtfully balancing the relevant interests. Optimality would consist of minimizing the sum of several costs. These costs would include the cost of obtaining evidence, costs associated with criminals who are not incapacitated, costs of the loss of privacy of individuals, and the costs of errors and administration. This approach would not be applicable in all situations, but it would provide a method for more focused, coherent, and intellectually honest debate and legal reforms. Footnotes