Alice Ristroph

Visiting Professor of Law

Fall 2017

Griswold 310

617-495-4623

Assistant: Patricia Fazzone / 617-496-2075

Biography

Alice Ristroph is a professor at Brooklyn Law School. She teaches and writes in criminal law and procedure, constitutional law, and political theory. Her recent work examines laws that regulate state violence, focusing especially on the law’s distribution of risks of physical harm. She has also been studying ways in which the law suppresses, tolerates, or even facilitates various forms of resistance to criminal justice institutions. Professor Ristroph received her J.D. and Ph.D. (political theory) from Harvard University, and she has served as a permanent or visiting faculty member at Seton Hall, Utah, Columbia, Georgetown, and Fordham law schools.

Areas of Interest

Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. Rev. (forthcoming 2017).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
Type: Article
Abstract
Police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. From the 1960s to the present, federal courts have persistently endorsed a very expansive police authority to make seizures—to stop persons, to arrest them, and to use force. This Article reveals the full scope of this Fourth Amendment seizure authority. Suspicion plays a critical and familiar role in authorizing seizures, but less attention has been given to the equally important concepts of resistance and compliance. Demands for compliance with officers and condemnations of resistance run throughout constitutional doctrine. Police are authorized to meet resistance with violence. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) protected elsewhere in American law. Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire new proposals to reduce and redistribute those risks. Instead of condemning all resistance, constitutional doctrine could and should protect certain forms of non-violent resistance both in police encounters and in later court proceedings. Embracing resistance could help constrain police authority and mitigate racial disparities in criminal justice, and surprisingly enough, it may yet reduce violence.
Alice Ristroph, Sovereignty and Subversion, 101 Va. L. Rev. 1029 (2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Between those who advocate “too great liberty” and those who contend for “too much authority,” Thomas Hobbes found it difficult “to pass between the points of both unwounded.” It does not appear that he cleared the gauntlet successfully. One of the many curiosities in Hobbes’s work is its provocation of two diametrically opposed, and seemingly inconsistent, criticisms. When Leviathan was first published some 350 years ago, Hobbes’s very name became an epithet in polite circles, evoking the horrors of atheism, libertinism, and worst of all, defiance to established authority. Today, the same work that Hobbes’s contemporaries denounced as a “Rebel’s Catechism” is widely viewed as an unequivocal, and misguided, defense of an authoritarian and absolutist government. Hobbes’s descriptions of the need for a powerful sovereign are many and memorable enough to have eclipsed, over time, his endorsements of a few specific rights to resist the sovereign. But Hobbes’s contemporaries did not overlook the subversive strands of his work, and neither should we. In particular, there is much to be learned from the juxtaposition of Hobbes’s account of law – a command made with authority, to one obliged to obey – and his account of punishment – an act of violence that the target has a right to resist. This juxtaposition illuminates some recurring jurisprudential questions about the relationship of law to coercion and the possibility of strictly descriptive, non-evaluative legal theory.
Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U. L. Rev. 1555 (2015).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Fourth Amendment
,
Fifth Amendment
,
Criminal Justice & Law Enforcement
Type: Article
Abstract
As soon as modern constitutional criminal procedure appeared, the police were at center stage. In judicial opinions and in academic commentary, the Fourth Amendment and some provisions of the Fifth and Sixth Amendments have been framed for decades as regulations of the police. The regulatory project is now widely viewed as a failure, and some judges and many commentators seem ready to abandon, or at least scale back dramatically, the whole field of constitutional criminal procedure. But the framing of that field as police regulation was always a mistake. The enterprise of constitutional criminal procedure is, by design, a vehicle for defendants to resist punishment rather than a mechanism to regulate police. The prototypical Fourth or Fifth Amendment claim alleges police misconduct, to be sure, but the immediate goal is not better policing. Instead, the prototypical claim is an individual’s act of resistance against state coercion: it is an effort to avoid punishment by claiming that the state has overstepped its powers. Regulatory effects of such a claim are derivative of, and subsidiary to, the resistance. Importantly, the defendant's act of resistance is itself constitutionally sanctioned. The Bill of Rights sets conditions for legitimate punishment, including minimum standards for investigative procedures. Thus it is open to individual defendants to resist punishment by alleging an unreasonable search or seizure, or an unconstitutional interrogation. We should recognize and even celebrate this resistance as part of a truly adversarial system. Even when punishment is ultimately and appropriately imposed, the resistance itself pushes the state to articulate and defend the principles of coercion that underlie the operation and enforcement of the criminal law.

Education History

Current Courses

Course Catalog View

Griswold 310

617-495-4623

Assistant: Patricia Fazzone / 617-496-2075