On the afternoon of Friday, March 26, and the morning of March 27, Harvard Law School will be celebrating the work of Bill Stuntz, the Henry J. Friendly Professor of Law. The conference will be a bittersweet event. It will be sweet in that many outstanding criminal procedure scholars, together with many other academic luminaries, will be gathering to honor the scholarship and humanity of a man who I personally think is the best criminal procedure scholar in the United States. It will be bittersweet in that Bill, 52, is terminally ill with cancer, as he has written about eloquently himself (see, for example, here, here). I am deeply honored to be one of the presenters at the conference.
The conference is open to the public, and it promises to be a remarkable event. Here is the list of speakers, which includes many close friends, colleagues, and former students of Bill: Pam Karlan, Anne Coughlin, Dan Kahan, Mike Seidman, Carol Steiker, Joe Hoffmann, Richard McAdams, Dan Richman, David Sklansky, Kenneth Abraham, Barbara Armacost, Andy Kaufman, John Manning, Andy Leipold, Tracey Meares, Erin Murphy, Dana Mulhauser, Elizabeth Scott, Robert Scott, and myself. Dean Martha Minow will provide a welcome, and Bill himself will be speaking at a time to be determined.
The schedule and location, together with the topic and abstract of my own remarks, are after the jump.
Friday, March 26
Ropes Gray Room: Pound Hall
1:00 – 1:30: Welcome: Dean Martha Minow
1:30 – 3:00: Panel 1: Political Economy of Criminal
3:15 – 4:45: Panel 2: Specific Issues in Criminal Procedure
5:00 – 6:30: Reception for all attendees and the law school community
Saturday, March 27
Ropes Gray Room: Pound Hall
9:00 – 10:30: Panel 3: Emotion, Discretion, Mercy, and Faith
10:45 -12:15: Panel 4: Mentors, Colleagues, and Students
Bill will be speaking at a time TBD.
Please click on the link for a map of the campus. All events will be
held in Pound Hall: http://www.law.harvard.edu/about/map.html
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My own presentation will be the following:
WHY COURTS CANNOT QUANTIFY PROBABLE CAUSE
The government can conduct almost any search or seizure if it has “probable cause.” But what is probable cause? Courts decline to define probable cause in terms of percentages, instead choosing to express the concept in vague terms like “fair probability.” This essay, inspired by Bill Stuntz’s classic article, “Warrants and Fourth Amendment Remedies,” argues that courts cannot quantify probable cause because probable cause is normally evaluated in an ex parte proceeding. Magistrate judges must assess probable cause based on a one- sided and partial explanation of cause that can only give part of the picture: The facts in a warrant affidavit do not say what methods the government didn’t try or what methods it tried but that failed to produce evidence. Magistrates cannot accurately calculate the likely percentage chance that evidence will be in the place to be searched because such a calculation would require these additional facts that warrants do not include. In this information vacuum, a hunch will be more accurate than a mathematical calculation. In short, courts do not quantify probable cause because judges normally will not have the information needed to quantify it accurately.