payton, search, seizure, fourth, amendment, entry, home, arrest, privacy, empirical pragmatism, social science, posner, edwards, law enforcement, warrant, probable cause, reasonable suspicion, reason to believe, dworkin
This Comment analyzes the conflicting "objective" and "subjective" tests that courts use to determine if a law enforcement officer's entry into a suspect's home is valid following the Supreme Court's holding in Payton v. New York that an arrest warrant implicitly carries with it a right to enter a suspect's home when there is "reason to believe" it is the suspect's residence and that the suspect is inside. The Comment questions how courts should interpret the "reason to believe" standard and analyzes an approach put forth by Professor Matthew A. Edwards in his article, Posner's Pragmatism and Payton Home Arrests. The Comment discusses Posner's approach of empirical pragmatism (the idea that judges should always rule according to the best interests of society) and considers criticisms of this approach. The Comment concludes that the question of what is best for society is more complicated than the pragmatist theory portrays and judges should instead exercise a "practical wisdom" that will continue American legal history as it develops into what society deems best.
Payton, Practical Wisdom, and the Pragmatist Judge: Is Payton's Goal to Prevent Unreasonable Entries or to Effectuate Home Arrests?,
34 Fordham Urb. L.J. 1517
Available at: https://ir.lawnet.fordham.edu/ulj/vol34/iss5/4