Document Type



Forthcoming 2007, New York University Review of Law and Social Change


This essay is my contribution to the symposium memorializing the Teaching From the Left conference, which was held at Harvard Law School March 11, 2006. I begin by describing 1968 as a year when progressive dreams emerged, but were killed off. I then consider how the 1968 Terry v. Ohio decision, which allowed police officers to "stop" and "frisk" suspects, killed off the probable cause standard by making the new reasonable suspicion standard the baseline test for criminal investigations. Next, I argue the demise of the probable cause standard has gone unchallenged because of an implicit contract wherein the mainstream grants officers excessive discretion with the understanding that those powers will only be used against the socially marginalized. I conclude by speculating that the action most in keeping with the progressive spirit of 1968 is to call for the abolishment of Terry stop and frisk powers.

Date of Authorship for this Version

July 2006


Fourth Amendment, Probable Cause, Reasonableness Clause