David Kessler '09

David Kessler ’09 will have an article published in the January 2009 edition of the Journal of Criminal Law and Criminology. Though students regularly publish “notes” in law reviews and journals, it is more unusual for them to have articles published.

Entitled “Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard,” the article uses empirical evidence to determine whether the Supreme Court’s test of seizure is effective. According to the Court, a seizure occurs when a reasonable person would not have felt free to leave when in contact with law enforcement. Drawing on a survey of randomly selected Boston residents, Kessler concludes that people “walking on the sidewalk or riding on a bus would not feel free when approached by a police officer and asked questions.” He suggests that there is a need to rethink the current seizure standard.

“The Court is finding too few people to be seized and is therefore denying people the potential protections of the Fourth Amendment,” Kessler writes. “These results suggest that the Court has been using its seizure standard incorrectly. The data in this paper suggests that applying an accurate ‘reasonable person’ standard would require the Court to consider carefully the level of granularity at which it describes the reasonable person.”

Kessler’s paper was written under the supervision of Professors Elizabeth Warren and William Stuntz.

“Kessler’s findings are interesting and important, the construction of his study was careful and sound, and his analysis is first-rate,” said Stuntz.” This is one of the best things written in the large literature on the Fourth Amendment in the past several years—not one of the best pieces of student writing, but one of the best pieces, period. And, it is among the best empirical work on the constitutional law of policing I have ever seen.”

Said Kessler: “What’s most rewarding to me about this project is that I can see how my research actually relates to and might have an impact in the real world.”