Document Type

Article

Publication Date

1997

Abstract

Agreeing with William Stuntz's conclusion that privacy retains a significant position in the law of criminal procedure, the author defends a privacy-oriented procedural regime that can .be reconciled with an activist regulatory state. Part One of this Article suggests that the comparatively light judicial supervision of police coercion owes more to the conditions under which force is used than to what Stuntz views as the Court's indifference to what police do to us, or to its "obsession" over what police can see and hear. By redescribing questions of privacy, or questions of privacy and coercion, merely as questions of coercion, Stuntz's attempt to correct the law of criminal procedure misfires linguistically and practically. The attempt misfires linguistically because "coercion!' is used in an extended sense, and practically because his thesis can contribute only marginally, if at all, to the reduction of police violence. Part Two explores the semantical distinctions between secrecy, privacy, and coercion in order to reclaim what Stuntz rejects: a right to be free from certain modes of police spying. Finally, Part Three argues that regulatory actions are distinguishable from police actions not solely by their lack of violence or coerciveness, but on grounds that Stuntz sloughs off: that groups and individuals are different. The collective power of groups explains why we join them. and why we fear them and also explains why groups are more vulnerable than individuals to meddlesome investigative practices.

Download

Share

COinS