Washington Law Review


In recent years, Richard A. Posner, a respected federal appellate judge and prolific scholar, has been at the vanguard of a resurgence of interest in legal pragmatism. Posner and other scholars have called for judges to expand their horizons beyond conventional legal reasoning and to embrace interdisciplinary methodology and empirical research in the legal decisionmaking process. At the same time, however, prominent jurisprudential scholars have expressed both practical and philosophical objections to Posner's controversial prescription for increased judicial reliance on social science research. This Article seeks to explore the value and limits of Posner's pragmatism and empirical inquiry in the context of home arrests. In Payton v. New York, the Supreme Court held that police may enter a suspect's residence to arrest the suspect when there is "reason to believe" that the suspect is at home. This Article surveys Payton's progeny and demonstrates that judicial application of the Payton rule fails to act as a significant check on police authority, in part because of judicial deference to the factual assumptions made by police who seek to arrest suspects at home. In response to this problem, this Article proposes that the United States Marshals Service undertake a study of home arrests that would provide courts with the hard evidence necessary to evaluate police action in Payton cases. Although this data would not answer the normative question of whether law enforcement needs or privacy interests should prevail in particular cases, courts would be forced to make their Payton judgments out in the open without reliance on potentially unwarranted factual assumptions.

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