Natasha Sarna (Georgetown University) has posted Check His Desk! Testing Outcome Bias in Fourth Amendment Public Employee Searches on SSRN. Here is the abstract:
What is “reasonable” under the law, and who gets to decide? Law students are introduced to “reasonableness” early and often in their careers and taught to recognize a distinct legal version through common law precedent. To take just one example, Fourth Amendment reasonableness admits of an endless variety of facts and circumstances, but alleges to rely on intelligible and stable features like one’s “reasonable” expectation of privacy and the reasonableness of a search in both scope and inception. While there is a growing body of empirical research focused on the stability of such terms as reasonableness, less work has been done on the ways in which law school and legal expertise begin to warp one’s perception, highlighting stabilities or divergence in perceptions of the “reasonable.” To fill that gap, this paper contributes empirical knowledge to our understanding of the relationship between layperson and legal expert conceptions of the “reasonable” by analyzing layperson, “0L,” 1L, 2L, and 3L responses to the same set of five scenarios describing searches of a public employee (a public schoolteacher). The findings reveal several core similarities between layperson and law student judgments of reasonableness—in particular, similar sensitivity to elements of the Fourth Amendment reasonableness test—as well as key differences, including a layperson susceptibility to outcome effect which nearly disappears in law school. This paper argues that its findings support the doctrinal hypothesis of protectionism, given the rise of the ambiguous “reasonableness” standards in lieu of text-based protections like warrants and probable cause. It also calls for further empirical research in the law school setting, to understand how the acquisition of legal expertise informs and/or warps one’s perception of commonly-used legal terms, in service of increased critical attention to the replicative biases and structures of legal education.