The Problem of Policing
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation — a fact largely invisible in contemporary scholarship. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits.
Lawsuits Against the Gun Industry: A Comparative Institutional Analysis
I argue that the tort system can complement the efforts of either institutions such as markets, legislatures and administrative agencies to make public policy. Solving complex social problems typically requires the cooperation of several policymaking institutions, each with its own strengths and weaknesses. My examination of lawsuits against the gun industry reveals that the tort system can and should play an active policymaking role in reducing gun violence.
Police use of deadly force: Research and reform
Police use of deadly force first became a major public issue in the 1960s, when many urban riots were precipitated immediately by police killings of citizens. Since that time scholars have studied deadly force extensively, police practitioners have made significant reforms in their policies and practices regarding deadly force, and the United States Supreme Court has voided a centuries-old legal principle that authorized police in about one-half the states to use deadly force to apprehend unarmed, nonviolent, fleeing felony suspects. This essay reviews and interprets these developments.