It’s being reported that Harvard Law Professor William Stuntz died last week at the tragically young age of 52 (see the Times obit here).  I never met Stuntz, but I’ve read and been deeply influenced by much of his writing.  Indeed, I doubt there is any scholar who has had a more profound influence on my generation of criminal procedure professors than Stuntz.  He contributed to a fundamental shift in the scholarly agenda from defining the proper scope of constitutional rights (which preoccupied the generation that came of age during the Warren Court crim pro revolution and the Burger Court counter-revolution) to studying how rights actually work in the real world of plea-bargaining, over-taxed criminal-justice systems, and dysfunctional tough-on-crime politics.  In the real world, he taught us over and over again, the law on the books (whether Supreme Court decisions on constitutional rights or legislative decisions on substantive criminal law) doesn’t necessarily matter much, and well-meaning attempts to improve the law on the books are apt to backfire and produce even worse outcomes than the status quo.

Here are three insights I picked up from Stuntz that have been particularly important to my own work:

Over the course of the past decade or so, legal scholars have been paying increasing attention to psychological research on cognition and decisionmaking.  In general, this has meant that scholars have become more sensitive to the common sorts of cognitive bias that have the potential to warp legal decisionmaking.  But, inspired in many cases by Malcolm Gladwell’s 2005 best-seller Blink: The Power of Thinking Without Thinking, another line of psychology-influenced legal scholarship seeks to harness the insights available through subconscious mental processes.  As Gladwell demonstrated, hunches can be amazingly accurate in many contexts, particularly hunches by experts.  This has led to arguments that courts ought to be quite deferential to police officers seeking warrants or testifying at suppression hearings — demanding rigorous justifications for officers’ suspicions, the argument goes, might cause officers not to rely on their hunches as much, which might be detrimental to effective policing.

Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010).  Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods.  As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues.