Public Law & Legal Theory
New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate—or “hit rate”—associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching opposite conclusions. They argue that equal hit rates merely reflect similar offending patterns by race and thus that the disproportionate searches are racially biased. Meanwhile many constitutional commentators decry racial profiling on the highways as “plainly unconstitutional,” while courts draw technical legal distinctions to easily dispose of civil suits alleging racial profiling on the roads.
Bernard E. Harcourt, "Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature and of Criminal Profiling More Generally" (University of Chicago Public Law & Legal Theory Working Paper No. 51, 2003).