Lawrence Rosenthal

Bio: Lawrence Rosenthal is an academic researcher from Chapman University. The author has contributed to research in topics: Supreme court & Originalism. The author has an hindex of 7, co-authored 43 publications receiving 144 citations. Previous affiliations of Lawrence Rosenthal include Indiana University & Loyola University Chicago.

Policing and Equal Protection

Abstract: For urban policing, it is the best of times and the worst of times. The innovative and proactive policing techniques that have come into widespread use over the past decade -- sometimes referred to as the "New Policing" -- are credited by many with producing significant reductions in urban crime. The vocal and numerous critics of these tactics, however, claim that the cure has been worse than the disease, by imposing enormous and unwarranted burdens on high crime minority communities where use of these new tactics is concentrated. In this paper, I offer a defense for New Policing as faithful to the commands of the Equal Protection Clause. The Equal Protection Clause, properly understood, requires that the government offer equal protection from lawbreakers to all in a jurisdiction, even if, for a variety of reasons, courts are reluctant to enforce this principle. Conventional and reactive policing, however, is unlikely to offer equal protection because of the dynamics of disadvantaged inner-city communities. Only through the commitment of disproportionate resources and the use of aggressive tactics can the government hope to offer high crime inner-city communities protection from lawbreaking that is effectively equal to that enjoyed by other communities. Thus, even practices that seem to focus enforcement on disproportinately minority communities are frequently not properly branded as based on some form of racial discrimination or profiling, but instead are an effort to comport with constitutional aspirations.

Second Thoughts on Damages for Wrongful Convictions

Abstract: After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in the criminal justice system as to render this rationale applicable. Moreover, because police and prosecutors respond to political and not economic incentives, the eonomic rationale for strict liability is unsatisfactory. Even viewed as a form of social insurance, mandatory compensation is problematic. Because compenation is funded by the taxpayers, it represents a highly anomalous wealth transfer from those most in need of government assistance to the wrongfully convicted. Given the many competing demands for scarce public resources, it is far from clear that public funding of wrongful conviction insurance represents a socially optimal use of public funds. Moreover, because damages awards are funded by the taxpayers rather than the wrongdoers, the case for compensation as a form of compensatory justice is equally problematic. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — skepticism that is amply warranted. A regime of fault-based liability for wrongful prosecutions and convictions could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction given that police and prosecutors respond to political and not economic incentives, and the political benefits of aggressive prosecutorial tactics are substantial. If individual public officials were required to pay judgments, in turn, many judgments would go unsatisfied, and the risk of overdetrrence would be great. Ultimately, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.

Against Orthodoxy: Miranda is Not Prophylactic and the Constitution is Not Perfect

Abstract: In the four decades since the decision in Miranda v. Arizona, two areas of consensus have emerged about that decision. The first is that Miranda's rationale for requiring its famous warnings prior to custodial interrogation is wrong, or at least dramatically overstated. In Miranda, the Supreme Court characterized custodial interrogation as involving inherent compulsion within the meaning of the Fifth Amendment. The Court has subsequently, however, come to characterize Miranda as prophylactic. On this view, custodial interrogation creates a risk of compulsion, but unwarned custodial interrogation is not itself a violation of the Fifth Amendment's prohibition on compelled self-incrimination. Even Miranda's advocates accept this characterization, while defending the propriety of prophylactic rules of constitutional law. The second point of agreement is that Miranda has turned out to be a failure. Despite Miranda, coerced confessions are said to be ubiquitous. Thus, we are told that stronger medicine is needed, such as videotaping custodial interrogation, requiring counsel during interrogation, strengthening constitutional regulation of the admissibility of confessions, forbidding interrogation techniques thought to be particularly likely to produce false or coercive confessions, or abolishing custodial interrogation entirely. In this article, which appears in a symposium on Miranda's fortieth anniversary, I mean to take on both areas of agreement. On the first point of agreement, I argue that the Court was correct to conclude that an inherent feature of custodial interrogation is compulsion within the meaning of the Fifth Amendment. The original meaning of compulsion for purposes of the Fifth Amendment is the fear of criminal sanctions if one does not submit to interrogation. It was the threat of such sanctions that made compelled oaths mandatory, and led to the creation of the privilege against compelled oaths. When a suspect is subjected to custodial interrogation, however, he cannot help but consider the possibility of criminal prosecution and its ensuing sanctions should he refuse to submit to questioning and therefore risk displeasing his captor. Thus, Miranda correctly concluded that some measure of compulsion inheres in all custodial interrogation. Constitutional rights, however, can be waived, and this is no less true of the right to be free from compelled self-incrimination than any other constitutional right. The Miranda warnings, in turn, provide the ingredients for a valid waiver of the right to be free from compelled self-incrimination. On this understanding, Miranda is not prophylactic - the warnings are essential if a confession obtained during custodial interrogation is to be received in evidence. On the second point of agreement, Miranda critics rely on the incidence of false confessions to make their case for additional regulation. I argue, however, that judicial regulation of interrogations can only be expected to be effective if the judiciary develops relatively clear and administrable rules. Most Miranda critics, however, advance no clear rules, but instead advocate a form of ad hoc regulation that is likely to accomplish no more than the unsatisfactory due process test that Miranda abandoned. Other Miranda critics correctly perceive the problem with ad hoc regulation, and take an expressly prophylactic approach to regulation - they claim that additional regulation is warranted for interrogations likely to lead to Fifth Amendment violations. The critics, however, fail to make the necessary empirical case for their reforms. They cannot show that the tactics they would target for additional regulation create disproportionate rates of false confessions. Instead, they advocate a form of what Henry Monaghan once called constitutional perfectionism - the critics argue that any system that fails to minimize the risk of convicting the innocent should be condemned as unconstitutional. The Constitution, however, does not contain a no-conviction-of-the-innocent clause, nor does it mandate perfection in the administration of justice. Any effective system of law enforcement will have a risk of error; and the critics have developed no principled means for identifying risks of error that can be considered constitutionally undue - indeed, they have not even identified the pertinent error rates. Even if we could identify error rates, it is the political process that should determine what error rates should be considered undue. For purposes of constitutional adjudication, requiring the police to obtain a valid waiver of Fifth Amendment rights under Miranda is all that we can reasonably ask from law enforcement.

Permissible Content Discrimination and the First Amendment: The Strange Case of the Public Employee

Abstract: The speech of public employees poses special problems under the First Amendment. As Justice O'Connor once explained, a rule that forbids employees who deal with the public from being rude to customers should be permissible in the public sector, even though a statute containing the very same prohibition would be considered impermissibly vague when applied to private-sector employees. Recognizing that a special rule for public employees is necessary, the Supreme Court has held that only when public employees speak on a matter of public concern does their speech qualify for constitutional protection, and even then, the employee's interest must be balanced against that of the employer. This approach, however, is deeply problematic. The public concern test highly subjective and manipulable, it calls for a kind of content and even viewpoint discrimination normally thought impermissible, and the difficulty of applying the public concern and balancing tests create problems of vagueness that themselves pose serious constitutional difficulties. In this article, the author proposes a reformulation of doctrine along the lines that the Supreme Court was cautiously pursuing before it adopted the public concern test - a regulation of public employee speech should be permissible if it is directed at achieving a legitimate managerial prerogative - treating any asserted managerial interest in pursuing ideological conformity with respect to all but the highest-ranking employees as illegtimate - and is not substantially broader than necessary to achieve that interest. This approach would bring public employee speech into harmony with general first amendment doctrine, while recognizing that the swath that should be afforded to public employers to regulate employees' speech is based on the scope of legitimate managerial prerogatives, subject to the First Amendment limitations on compelling ideological conformity in the public workforce.

The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation

Abstract: This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation.In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of citizenship protected by the Fourteenth Amendment's Privileges or Immunities Clause. At the same time, however, most originalists have rejected the view that constitutional interpretation should be based on the intent of the framers, and instead have argued that constitutional text should be interpreted in light of its original public meaning. This approach, sometimes called "The New Originalism," seems to have prevailed in the Supreme Court; the Court's recent decision interpreting the Second Amendment's right to bear arms endorses original public meaning as the appropriate method of originalist interpretation.This paper seeks to demonstrate that the New Originalism poses special problems for incorporation. The view of key framers that because the privileges and immunities of citizenship included the Bill of Rights was not the predominant one; although the concept of the privileges and immunities of citizenship at the time of the Fourteenth Amendment's framing was contested, the most widely shared view was the these privileges and immunities of citizens did not include the first eight amendments. Although many who crafted the Fourteenth Amendment had a different view, the evidence that the drafters succeeded in altering the public's understanding of the privileges and immunities of citizenship is in conflict, and in many respects unsatisfactory. Viewed through the lens of original public meaning, the historical case for incorporation is therefore problematic. The paper concludes that because the meaning of the Privileges and Immunities Clause at the time of ratification with rife with ambiguity, a nonoriginalist approach is a better way to tackle the incorporation problem, even for a New Originalist determined to base constitutional adjudication on methods for ascertaining constitutional meaning that were accepted in the framing era.

The Black Box Society: The Secret Algorithms That Control Money and Information

Abstract: Every day, corporations are connecting the dots about our personal behaviorsilently scrutinizing clues left behind by our work habits and Internet use. The data compiled and portraits created are incredibly detailed, to the point of being invasive. But who connects the dots about what firms are doing with this information? The Black Box Society argues that we all need to be able to do soand to set limits on how big data affects our lives. Hidden algorithms can make (or ruin) reputations, decide the destiny of entrepreneurs, or even devastate an entire economy. Shrouded in secrecy and complexity, decisions at major Silicon Valley and Wall Street firms were long assumed to be neutral and technical. But leaks, whistleblowers, and legal disputes have shed new light on automated judgment. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of this troubling behavior. Frank Pasquale exposes how powerful interests abuse secrecy for profit and explains ways to rein them in. Demanding transparency is only the first step. An intelligible society would assure that key decisions of its most important firms are fair, nondiscriminatory, and open to criticism. Silicon Valley and Wall Street need to accept as much accountability as they impose on others.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

The Relation between Public and Private Policing

Abstract: Employment by policing agencies equals or exceeds public police employment in many countries. Reigning conceptions of relations between public police and private policing have changed markedly. A state-centered view of police functions disparaged "private armies" and saw order maintenance as a quintessential function of government. In recent decades, a laissez-faire view has emerged that celebrates "private-public partnerships" and sees private policing as an industry providing both a service and a public benefit. Social theorists question the wisdom and the likely future directions of the privatization of order maintenance.

Precinct or Prejudice? Understanding Racial Disparities in New York City's Stop-and-Frisk Policy

Abstract: Recent studies have examined racial disparities in stop-and-frisk, a widely employed but controversial policing tactic. The statistical evidence, however, has been limited and contradictory. We investigate by analyzing three million stops in New York City over five years, focusing on cases where officers suspected the stopped individual of criminal possession of a weapon (CPW). For each CPW stop, we estimate the ex ante probability that the detained suspect has a weapon. We find that in more than 40% of cases, the likelihood of finding a weapon (typically a knife) was less than 1%, raising concerns that the legal requirement of “reasonable suspicion” was often not met. We further find that blacks and Hispanics were disproportionately stopped in these low hit rate contexts, a phenomenon that we trace to two factors: (1) lower thresholds for stopping individuals — regardless of race — in high-crime, predominately minority areas, particularly public housing; and (2) lower thresholds for stopping minorities relative to similarly situated whites. Finally, we demonstrate that by conducting only the 6% of stops that are statistically most likely to result in weapons seizure, one can both recover the majority of weapons and mitigate racial disparities in who is stopped. We show that this statistically informed stopping strategy can be approximated by simple, easily implemented heuristics with little loss in efficiency.