Friday, June 22, 2018
Sarah Seo (University of Iowa College of Law) has posted Democratic Policing Before the Due Process Revolution (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.