Wednesday, January 12, 2022
Anthony O'Rourke (University at Buffalo Law School) has posted The Ostensible (and, at Times, Actual) Virtue of Deference (Yale Law Journal Forum, Forthcoming) on SSRN. Here is the abstract:
In "Rethinking Police Expertise," Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive in-sights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Forum Response argues, however, that "Rethinking Police Expertise's" normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it condemns) and judicial understandings of expertise as a “professional technology” (which it applauds). This conceptual framework fails to capture a simple and well-grounded intuition that reformers should accommodate: while it may be an error for judges to treat expertise as an inherent virtue, it may in certain contexts be virtuous of them to defer to expertise.