Critical Legal Studies and the Police

Constitutional police regulation is a complex tangle of substantive rights, remedies, and procedural rules. Together, they appear to scaffold a cohesive system of police restraint. Legal scholars tend to focus criticism on specific rules, impelled by faith that the system can be made to serve its core purpose: protecting civilians against police overreach and abuse. Drawing on critical legal studies, this Article contends that constitutional police regulation is incapable of realizing its putative purpose.

Constitutional police regulation frames policing as a series of isolated, individual police-civilian encounters. This is compounded by the unpredictable interpretive interplay between substantive, remedial, and procedural rules. That interplay generates systemic indeterminacy. This Article offers a sociolegal account for why constitutional police regulation has developed as it has.

Both courts and police derive legitimacy from the broadly shared perception that the former supervise the latter. The notion that there is a criminal justice system assumes a legal tether connecting the street to the courtroom. The tether is mythological. Constitutional police regulation symbolically sustains the appearance of judicial control over the police.

That appearance mediates and disguises the chasm that separates the police from the courtroom. The descriptive account here supports calls for state and local legislatures to remake the police.