Author
Lawrence Rosenthal
Other affiliations: Indiana University, Loyola University Chicago, Washington University in St. Louis ...read more
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.
Topics: Supreme court, Originalism, Scrutiny, Search and seizure, Probable cause
Papers
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TL;DR: Rudovsky and Rosenthal as mentioned in this paper argue that Floyd shows the important role of data and statistical analysis in assessing the constitutionality of stop-and-frisk procedures and that Judge Scheindlin should have considered differential offending by race or other potentially nondiscriminatory explanations for the higher stop rates of minorities.
Abstract: Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of Floyd and Judge Shira A. Scheindlin’s controversial removal from the case. Professor Rudovsky argues that Floyd shows the important role of data and statistical analysis in assessing the constitutionality of stop-and-frisk procedures. He contends that empirical evidence regarding both the factors for and outcomes of stops and frisks in New York demonstrates that either the legal standard is too permissive or police-stop documentation is not truthful. In response, Professor Rosenthal argues that Judge Scheindlin erred in failing to consider evidence of stop-and-frisk’s efficacy — evidence indicating that the NYPD’s stops are based on reasonable suspicion, a standard considerably less demanding than “preponderance of the evidence.” Additionally, Rosenthal argues that Judge Scheindlin should have considered differential offending by race or other potentially nondiscriminatory explanations for the higher stop rates of minorities.
3 citations
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TL;DR: In the context of the 2010 Texas Tech Law Review's 4th Amendment Symposium, this article argued that the framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness.
Abstract: Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . .” Terry is frequently denounced as granting the police excessively broad discretion that threatens the liberty of the innocent, and which facilitates discrimination against minorities and others that the police are all too likely to view as suspicious. Originalists attack Terry as well, claiming that it lacks adequate support in framing-era practice. This paper, part of the 2010 Texas Tech Law Review's Fourth Amendment Symposium, offers a defense of the much-maligned Terry doctrine. It begins with an account of urban crime over the past few decades, and argues that there is a case to be made that Terry’s regime of stop-and-frisk deserves a good deal of the credit for the reductions in violent crime that major cities have experienced in recent years. It then considers the originalist attack on Terry, and argues that it runs afoul on the Achilles heel of originalism – it relies on framing era practice and understandings to flesh out the meaning of constitutional text without taking adequate account of the context in which these practices and understandings emerged. Although the historical support for Terry‘s regime of stop-and-frisk is fairly debatable, framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness. The paper finally turns to the pragmatic attacks on Terry, and after observing that the evidence that Terry has facilitated unwarranted or discriminatory police conduct is more ambiguous than the critics acknowledge, contends that these critics undervalue the importance of Terry to saving lives in the inner city.
2 citations
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TL;DR: Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller as discussed by the authors, which recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.
Abstract: Second Amendment jurisprudence was revolutionized by the Supreme Court's 2008 decision in District of Columbia v. Heller. Relying on what it characterized as the "original meaning" of the Second Amendment, the Court recognized for the first time an individual right to keep and bear arms, and invalidated an ordinance that prohibited the possession of handguns, at least as applied to individuals who wished to keep them at home for purposes of lawful self-defense.This article takes Heller’s conclusions about the original meaning of the Second Amendment as given, and assesses whether they have produced – or even are capable of producing – an authentically originalist Second Amendment jurisprudence. It assesses as well the implications of Heller for gun control. Some six years after the Court announced a new era in Second Amendment jurisprudence in Heller, the outlines of a new Second Amendment jurisprudence – one that contemplates surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role – are starting to come clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment's preamble and its operative clause. It explores as well the constitutional case for a quite robust regime of gun control.
2 citations
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TL;DR: Ricci v. DeStefano as discussed by the authors was the seminal case that established the notion of disparate impact liability for employment practices that have the effect of excluding women and minorities from their workforce.
Abstract: More than four decades ago, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964’s prohibition on racial discrimination in employment is properly construed to forbid “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” that nevertheless “operate as ‘built-in headwinds’ for minority groups . . . that are unrelated to testing job capability.” In the Civil Rights Act of 1991, Congress codified liability for cases in which an employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the [employer] fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” As many have observed, disparate-impact liability, by forcing employers to justify employment practices that have the effect of excluding women and minorities from their workforce, has been of considerable importance in producing reform in employment practices that had inhibited the economic advance of women and minorities. Yet, a cloud hangs over disparate-impact liability. In Ricci v. DeStefano, the United States Supreme Court concluded that an employer's decision to discard an employment practice because it produced a racially disparate impact amounts to a form of racial discrimination against nonminorities, at least absent “a strong basis in evidence to believe it would face disparate-impact liability . . . ." By holding that an employer’s abandonment of an employee selection mechanism because it produces too many successful nonminority candidates amounts to racial discrimination, Ricci cast grave constitutional doubt on disparate-impact liability. Contemporary equal protection jurisprudence requires strict scrutiny for all race-conscious governmental action, even when it has a remedial or otherwise ostensibly benign justification. Indeed, in his separate opinion, Justice Scalia expressed serious doubt about the constitutionality of disparate-impact liability. Ricci has provoked a torrent of criticism from those who regard it as an indefensible limitation on the ability of the civil rights laws to remediate discrimination. The literature does not yet contain, however, an account that endeavors to harmonize disparate-impact liability with contemporary equal protection jurisprudence. The task of this article is to provide that account. Part I demonstrates that the holding in Ricci was essentially compelled by the structure of contemporary equal protection jurisprudence. Part II endeavors to reconcile disparate-impact liability with strict scrutiny. Part III submits that the the fate of disparate-impact liability tells us much about the character of equal protection. Asking the question whether disparate impact can be saved ultimately tells us whether equal protection jurisprudence is to embody a conception of a colorblind Constitution so robust that it effectively prevents the government from addressing racially skewed inequality of opportunity. While it proves difficult to disentangle race-conscious governmental action, even for remedial purposes, from the rigors of strict scrutiny, Part III contends that there is good reason to resist the view that the government must always remain colorblind, even in the face of demonstrable inequality of opportunity that locks racial minorities into a position of economic disadvantage.
2 citations
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TL;DR: In this paper, the authors argue that the success of aggressive stop-and-frisk tactics over the past decade helps to demonstrate their consistency with the Constitution and that it is unfair to characterize tactics that have saved thousands of lives and mitigated the destructive impact of violent crime on inner-city minority communities as a racial tax.
Abstract: Thinking about constitutional criminal procedure has been impoverished by its failure to take account of sociological and criminological reality, especially as it relates to high crime inner-city policing. High rates of violent crime in the inner city have had an enormously destructive impact in the affected communities. There is a strong empirical case to be made that aggressive stop-and-frisk tactics effectively drive down rates of violent crime in these areas. There is, however, reason to doubt that these tactics comport with constitutional standards articulated by the courts. In this paper, I argue that the success of of aggressive police tactics over past decade helps to demonstrate their consistency with the Constitution. While critics of stop-and-frisk tactics brand them as a type of racial tax on minorities, it unfair to characterize tactics that have saved thousands of lives and mitigated the destructive impact of violent crime on inner-city minority communities as a racial tax. Nor should stop-and-frisk tactics be branded as unreasonable within the meaning of the Fourth Amendment. A jurisprudence that condemns as unreasonable the policing methods that show the greatest promise for ending the horrific slaughter in the inner city neither attractive nor just. Such a jurisprudence disproportionately confers its benefits on the middle class, the liberty of which is enhanced by a host of rules that constrain police authority, but which does not experience the cost of this jurisprudence in terms of constraining the ability of the police to provide effective security in high-crime communities. The Fourth Amendment should not protect the liberty of the middle class at the expense of the security of the poor.
2 citations
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29 Aug 2016
TL;DR: The Black Box Society argues that we all need to be able to do so and to set limits on how big data affects our lives as mentioned in this paper. But who connects the dots about what firms are doing with this 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.
1,342 citations
01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
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.
1,336 citations
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TL;DR: 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 as discussed by the authors.
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.
133 citations
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TL;DR: In this article, the authors investigate 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) and estimate the ex ante probability that the detained suspect has a weapon.
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.
126 citations
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TL;DR: This paper employed a synthesis of conflict and labeling theory to reexamine the often observed links between race, social class, and arrest, using longitudinal data on a representative sample of U.S. teens, random effects negative binomial regressions detected direct and indirect effects of race and class on arrest.
70 citations