Research Handbook on Economic Models of Law

Research Handbook on Economic Models of Law

Research Handbooks in Law and Economics series

Edited by Thomas J. Miceli and Matthew J. Baker

One of the great successes of the law and economics movement has been the use of economic models to explain the structure and function of broad areas of law. The original contributions to this volume epitomize that tradition, offering state-of-the-art research on the many facets of economic modeling in law.

Chapter 11: Search, seizure and false (?) arrest: an analysis of fourth amendment remedies when police can plant evidence

Dhammika Dharmapala and Thomas J. Miceli

Subjects: economics and finance, history of economic thought, law and economics, methodology of economics, law - academic, law and economics


The prosecution of criminal defendants is a process fraught with uncertainty, and requires a delicate balance between the search for the truth and the protection of citizensí right to be free from unreasonable invasions of their privacy. An important legal safeguard in this context is the Fourth Amendment to the U.S. Constitution, which provides that: ëThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. . .í (U.S. Const., Amendment IV). The Supreme Court has interpreted this amendment to require that police, when feasible, obtain a warrant prior to search, which a judge will only issue on a finding of probable cause (the ëwarrant requirementí), and further, that any illegally obtained evidence will be excluded from trial (the ëFourth Amendment exclusionary ruleí). Scholars have vigorously debated the desirability of these remedies for violations of the Fourth Amendment. A major focus of the debate has been on the relative merits of the warrant requirement and exclusionary rule on the one hand, and a reasonableness standard enforced by tort liability for the government or its agents on the other. Amar (1997, Chapter 1), for example, argues that the plain language of the Fourth Amendment does not require warrants, probable cause, or exclusion of evidence, but only that searches and seizures be reasonable.

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