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Friday, November 26, 2010

An OMB for the Courts?

In the spirit of Thanksgiving, I want to give thanks for my current job.  Before entering academia, I practiced and clerked, and enjoyed both jobs for the most part.  But in each job I could not stop myself from thinking about the law in nonintuitive ways.  Now I get paid to do it!

I want to take a break from blogging about my current draft "Mass Torts and Due Process" to discuss one half-baked idea I played around with during my clerkship.  Like all clerks, I worked on a fair amount of criminal cases.   One such case involved a Terry stop in Boston.  The details of the case are not important, but while researching the case I read a number of Supreme Court opinions on "reasonable suspicion," and I tried to think of more rational ways to deal with the issue, including one that is the title of this blog post.

What I found interesting about findings of "reasonable suspicion" is that they rely a great deal on both a police officer's experience AND a district court's experience.  In Ornelas v. United States, for example, Justice Rehnquist emphasizes that appellate courts should "give due weight to inferences drawn from [the suspicious behavior] by resident judges and local law enforcement officers."  After all, "[a] trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise." Moreover, in Illinois v. Wardlow, which concerned whether flight in a "high crime area" was sufficient to establish reasonable suspicion, Justice Rehnquist notes that "[i]n reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists."

It's understandable to give some weight to the experience of officers and district court judges, but is there anything really stopping courts from developing "empirical studies" concerning suspicious behavior? Although I focus on civil procedure, I have long been a fan of Rachel Barkow's work using insights from administrative law to reform criminal law enforcement.  Her work inspired me to think of nonintuitive ways to provide "empirical studies" of suspicious behavior within the federal judiciary.  Admittedly, there are some foundations that provide such empirical research on legal issues, and courts could demand greater evidence from the parties.  But what if the federal judiciary (or an entrepreneurial circuit) decided to create a research and development department to conduct the kind of empirical research that is currently not available?  Moreover, such a department could study not only how "suspicious" certain behaviors actually are, but the cost and benefits of targeting one type of behavior (or area, as in the case of "high crime areas") over others.   Thus, such a department could be like an OMB or CBO for the courts.  Although the focus of such an "OMB" for the courts would not be on the impact of doctrine on the court's budget, it would provide the same kind of cost-benefit analysis to criminal procedure doctrine that the OMB and the CBO provide for executive action and legislation.  In fact, such an "OMB" for the courts could look at other things within the purview of federal jurisdiction, such as pleading standards or class certification standards.  

Now, I am not claiming originality for this idea, since I am sure others have suggested it.  In fact, it is unclear to me whether the Federal Judicial Center already conducts some of these studies.  I am also aware of some of the limits of cost-benefit analysis.  But one benefit of having an "OMB" for the courts is that it would allow us to test the "experience" of officers and judges, particular when that "experience" could have some unintended consequences.  What do you all think?  

Posted by Sergio Campos on November 26, 2010 at 03:50 PM | Permalink


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Not to get into it, Andrew, but the USSC is not inherently a disaster--one could more plausibly say that the USSG had lots of problems but those shouldn't be laid at the feet of the USSC's structure, since Congress had a good bit of hand in screwing up the sentencing guidelines with a number of specific legislative mandates. So Sergio, don't be deterred...

Posted by: Dan Markel | Nov 30, 2010 12:23:32 AM

The last time it was tried, with the United States Sentencing Commission, it was a disaster.

Posted by: ohwilleke | Nov 29, 2010 10:14:06 PM

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