To figure out how to tell this story, I had to think about the book as a whole. In light of the realities of academic teaching today, I also crafted each chapter to stand alone, each with its own narrative, cast of characters, and argument. Here’s a short breakdown:
- Chapter 1, “A Mystery of Traffic” gives an account of how the mass adoption of the automobile led to the shift from nineteenth-century governance based on common law and voluntarism to twentieth-century governance based on discretionary policing.
- Chapter 2, “From Lumbering Foot Patrolmen to Motor-Mounted Policemen” traces the emergence of twentieth-century professionalized police to the need to manage traffic and “law-abiding” traffic violators.
- Chapter 3, “The Automotive Fourth Amendment” examines the technology-driven demise of classical legal thought in criminal procedure and the resulting expansion of police discretion. Or, for crim pro folks, this chapter tells the story about how the Carroll automobile exception in 1925 culminated with the Terry stop-and-frisk in 1968.
- Chapter 4, “It Could Happen to You” offers an alternative account of the Warren Court’s due process revolution by juxtaposing the Court’s landmark cases with its car cases.
- Chapter 5, “The Right to Privacy in Public” integrates the histories of policing and the twentieth-century administrative state to explain why the major legal theories of the twentieth century—classical legal thought, legal realism, and legal process theory—failed to offer a principled method to both justify and constrain police discretion.
- Chapter 6, “The Fourth Amendment Tool in Criminal Patrol” is a legal history of driving while black that shows that underlying proceduralism was a fundamental acceptance of discretionary policing—to the point of countenancing racialized policing.
One could easily pick up Policing the Open Road and start with any chapter. But, as with any book, readers would miss important narrative and thematic through lines without reading from beginning to end. One is the sense of dramatic change in state power and discretionary policing from the beginning of the twentieth century to the present.
Second, although it’s hard to miss my argument about causation, readers of select chapters may not catch my periodization. I argue that the turn to procedure in American law was an outgrowth of events in American society that took place in the 1920s and 30s.
Let me give an example that will be familiar to those who have read my essay, “The New Public,” which appears, significantly modified, as Chapter 5 (more on this in a future post). One of the main characters in this chapter is Charles Reich, who wrote the 1970 bestseller The Greening of America. In 1966 as a Yale law professor, he also wrote about his numerous encounters with the police in his car. These stops were about more than the annoyances of getting pulled over too many times. They were also about the invasion of his privacy. As a closeted gay man at a time when sodomy was a crime in all states but one, Reich went for long drives to escape the burdens of keeping his secret. So when the police questioned his whereabouts in his car, they were prying into the most intimate parts of his personal life.
Readers who read Chapter 5 will come away understanding the struggles of a legal progressive and realist who, in his attempts to delineate some limits on the police, flirted with classical legal thought but settled on an entirely different solution that ultimately expanded the police’s power even more. There is a sense that Reich conceded too much; a contemporary wrote in Playboy that Reich’s proposals for police reform were “well-meaning” but not enough.
But readers who have also read Chapter 1 will find it difficult to judge Reich’s concession to discretionary policing. Further confirming that larger social forces were at play, Reich’s proposals essentially mirrored policy choices and legal changes from the 1920s and 30s that accommodated police discretion, which are detailed in Chapters 2 and 3. Readers of Chapters 3 and 4 will also appreciate the constraints that the public/private dichotomy imposed on Reich’s thinking about the police problem and American legal thought more generally. And while Chapter 5 mentions the implications of Reich’s reforms, it is in Chapter 6 where readers learn about the devastating consequences of proceduralism in Fourth Amendment jurisprudence.
Like any author, I’m thrilled and honored whenever anyone reads something I’ve written. I know I’ll still be thrilled and honored if someone decides to pick and choose a chapter from Policing the Open Road rather than read the whole thing. I understand that authors have to earn their readers. I’ll pick up on this and narrative strategies in the next post.