Orin Kerr

Economics Will Be Our Ruination II

Economics appears to be a neutral tool, but it often subtly embeds values that we are better off surfacing and discussing. In a recent post henceforth to be known as “Economics Will Be Our Runiation I,” I pointed out how, by preferring to measure the movement of dollars, orthodox economics treats leisure as a bad thing and laments advances in technology-based entertainments.

This installment of EWBOR focuses on an interesting and insightful article recently published in the University of Pennsylvania Law Review, “An Economic Understanding of Search and Seizure Law.” In it, George Washington University Law School professor Orin Kerr shows that the Fourth Amendment helps increase the efficiency of law enforcement by accounting for external costs of investigations. Here is his model:

The net benefit of any particular investigative step can be described as P*V – Ci – Ce, where P represents the increase in probability that the crime will be solved and successfully prosecuted, V represents the net value of a successful prosecution resulting from deterrence and incapacitation, Ci represents the internal costs of the investigative step, and Ce represents its external costs.

Ci means things like the cost of training and equipping police officers and paying their salaries, as well as their own use of their time. Ce, external costs, “include privacy harms and property losses that result from an investigation that is imposed on a suspect. They also include the loss of autonomy and freedom imposed directly on the subject of the investigation (who may be guilty or innocent) as well as his family or associates.” Kerr rightly includes in Ce more diffuse burdens such as community hostility to law enforcement.

Citizen Shahzad

Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad.  First, Orin Kerr points out that investigators have some flexibility in determining when and

Blurry Lines, Discrete Acts, and Government Searches

I’ve written before about the “Mosaic Theory” some courts have recently employed to conclude that certain forms of government surveillance may trigger Fourth Amendment protection in the aggregate, even if the surveillance can be broken down into components that don’t fall under the traditional definition of a Fourth Amendment “search.” This has been applied specifically to high-tech forms of location tracking, where several judges have concluded that a person may have a privacy i

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

Internet Privacy Law Needs an Upgrade

Imagine for a moment that all your computing devices had to run on code that had been written in 1986. Your smartphone is, alas, entirely out of luck, but your laptop or desktop computer might be able to get online using a dial-up modem. But you’d better be happy with a command-line interface to services like e-mail, Usenet, and Telnet, because the only “Web browsers” anyone’s heard of in 1986 are entomologists. Cloud computing? Location based services? Social networking?

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