A Joint Study of Judicial Inequality

Why Courts Fail to Protect Privacy

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The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? Researchers from the University of Denver and the University of Arizona collaborated to investigate disparities between judges’ intuitions and public expectations regarding personal privacy.

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About the Project

The Supreme Court holds that the definition of an unreasonable search and seizure must align with the public's "reasonable expectations" concerning their own privacy. But how is this threshold determined? The collaboration between DU and the University of Arizona identified the possibility that judges—who tend to be male, white, educated, affluent and older than the general population—have systematically different opinions on privacy rights than younger people and minority communities, who are shown through research to be disproportionately targeted by police.

With 1,200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to reflect. We identified a range of privacy expectations for 18 different police practices. We used oversampling, reweighting and randomization to investigate particular causes of this disparity between judicial and public expectations. The study concluded by suggesting better ways forward, so that social science evidence can replace judicial speculation.

The collaboration between DU and the University of Arizona resulted in a 2017 publication, 106 CAL. L. REV. 62, and reflects the colleges' dedications to promoting social and judicial equity.

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Bernard Chao

Bernard Chao is a professor at the University of Denver's Sturm College of Law, where he serves as director of its intellectual property certificate program, co-director of its Empirical Justice Institute and chair of the law school’s Hughes Committee, which helps faculty engage in empirical research. His research explores the connections between law and technology, with focuses on patent issues and cognitive bias in legal decision-making.