Comments on: How the Court Confuses Marginals and Totals in the Subway Search Case http://www.lawsocietyblog.com/archives/160 Notes from the intersection of law, society, technology, economics, and culture Tue, 06 Jan 2009 23:59:02 +0000 http://wordpress.org/?v=2.2 By: Bruce Regal http://www.lawsocietyblog.com/archives/160#comment-656 Bruce Regal Wed, 18 Jan 2006 00:22:48 +0000 http://www.lawsocietyblog.com/archives/160#comment-656 I assume that if searches took place at 99% of subway stops that would be an "effective" program worthy of a serious balancing against the intrusion on privacy, whereas a program at only one subway stop would not be effective, and that there is some line in the middle between effectiveness and ineffectiveness. Then the question becomes, how much deference does a judge give to law enforcement officials in drawing that particular line, which essentially involves an empirical determination about deterrence and criminal behavior? I think these are not questions as easily answered, for a judge, as your post suggests. That being said, the program ultimately is probably not about deterrence at all, but about making people feel better(irrationally perhaps, but no less actually) -- helping them feel, subconsciously if nothing else, that the authorities are doing something, anything, about what is from a rational point of view (at least for local law enforcement authorities who have no control over international policy) the intractable problem of terrorism. Is helping people feel irrationally more protected a valid government purpose that is entitled to constitutional recognition? This effort to give people comfort that the government is doing something, anything (no matter how pointless or even counterproductive in reality) to "fight" terrorism, is by the way, the same ultimate reason, it seems to me (and has seemed to me from the beginning), that we went to war in Iraq. I assume that if searches took place at 99% of subway stops that would be an “effective” program worthy of a serious balancing against the intrusion on privacy, whereas a program at only one subway stop would not be effective, and that there is some line in the middle between effectiveness and ineffectiveness. Then the question becomes, how much deference does a judge give to law enforcement officials in drawing that particular line, which essentially involves an empirical determination about deterrence and criminal behavior? I think these are not questions as easily answered, for a judge, as your post suggests.

That being said, the program ultimately is probably not about deterrence at all, but about making people feel better(irrationally perhaps, but no less actually) — helping them feel, subconsciously if nothing else, that the authorities are doing something, anything, about what is from a rational point of view (at least for local law enforcement authorities who have no control over international policy) the intractable problem of terrorism. Is helping people feel irrationally more protected a valid government purpose that is entitled to constitutional recognition?

This effort to give people comfort that the government is doing something, anything (no matter how pointless or even counterproductive in reality) to “fight” terrorism, is by the way, the same ultimate reason, it seems to me (and has seemed to me from the beginning), that we went to war in Iraq.

]]>