Thomas P. Crocker (University of South Carolina School of Law) has posted The Fourth Amendment And The Problem Of Social Cost on SSRN. Here is the abstract:
The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept's meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their "substantial social costs." According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality-the precondition for exclusion or damagesitself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not? Taking a cue from Professor Ronald Coase's famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what "social cost" entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize "social cost" seriously.