New draft article, "An Economic Understanding of Search and Seizure Law"

|The Volokh Conspiracy |

I recently posted a new draft article, An Economic Understanding of Search and Seizure Law, forthcoming in the University of Pennsylvania Law Review. Here's the abstract:

This article uses economic concepts to understand the function of search and seizure law, the law governing government investigations that is most often associated with the Fourth Amendment. It explains search and seizure law as a way to increase the efficiency of law enforcement by accounting for external costs of investigations. The police will often discount negative externalities imposed by their work. Search and seizure law responds by prohibiting investigative steps when external costs are excessive. By conditioning law enforcement steps on specific factual predicates, the law channels government resources into welfare-enhancing investigative paths instead of welfare-reducing steps that would occur absent legal regulation. This perspective on search and seizure law is descriptively helpful; it provides a useful analytical language to describe the role of different Fourth Amendment doctrines; and it provides fresh normative insights concerning recurring debates in Fourth Amendment law.

As always, comments very welcome.