The law and economics of the exclusionary rule

Tonja Jacobi*

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    18 Scopus citations

    Abstract

    The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. This Article uses a law and economics approach and formally models the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule does little to discourage police harassment of ordinary citizens, particularly minorities, potentially even leaving police with a dominant strategy to search; and second, when applied at trial, the rule decreases the benefit of the doubt received by defendants who are most likely to be actually innocent. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem. A means of assessing the appropriateness of this secondary jurisprudence is provided, that promotes better screening between innocent and guilty defendants.

    Original languageEnglish (US)
    Pages (from-to)585-675
    Number of pages91
    JournalNotre Dame Law Review
    Volume87
    Issue number2
    StatePublished - Dec 1 2011

    ASJC Scopus subject areas

    • Law

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