VOLUME 166, ISSUE 1 November 2017

Credibility is central to the legal treatment of sexual violence, as epitomized by the iconic “he said/she said” contest. Over time, the resolution of competing factual accounts has evidenced a deeply skeptical orientation toward rape accusers. This incredulous stance remains firmly lodged, having migrated from formal legal rules to informal practices, with much the same result—an enduring system of disbelief. Introducing the concept of “credibility discounting” helps to explain the dominant feature of our legal response to rape. Although false reports of rape are uncommon, law enforcement officers tend to default to doubt when women allege sexual assault, resulting in curtailed investigations as well as infrequent arrests and prosecutions. Credibility discounts, which are meted out at every stage of the criminal process, involve downgrades both to trustworthiness (corresponding to testimonial injustice) and to plausibility (corresponding to hermeneutical injustice).

By conceptualizing prejudiced disbelief as a distinct failure of justice, one deserving of separate consideration, we may begin to grasp the full implications of credibility discounting, beyond faulty criminal justice outcomes. Attending to this failure of epistemic justice on its own terms advances a conversation about how best to reform institutions so that credibility judgments do not perpetuate inequality. To this end, credibility discounting should count as actionable discrimination. Under certain conditions, moreover, this recognition raises constitutional concerns. When rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.

When compared with other constitutional doctrines, Establishment Clause doctrine is confused and anomalous, both substantively and with regard to standing. The Supreme Court ought to craft reforms in light of a wide‐angle appraisal of pertinent comparisons, analogies, and interconnections. Substantively, the Justices should adopt the tiers‐of‐scrutiny approach that the Court employs under the Free Exercise, Free Speech, and Equal Protection Clauses. Within a tiered‐scrutiny regime, the Court should strictly scrutinize any statute that classifies or requires classifications based on religion. It should prescribe intermediate scrutiny for statutes that expend tax revenues to provide material benefits to churches or religiously affiliated organizations on a nondiscriminatory, nonpreferential basis. And it should clarify its approach to determining which symbolic supports for religion rise to the level of Establishment Clause violations. Correspondingly, the Court should realign standing doctrine to equate the injuries needed for standing more closely with those against which the Establishment Clause furnishes substantive protection.

The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve out post hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically—benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry.

I coin the term “meaningful understanding” to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law‐enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised—unable to plan a law‐abiding life consistent with the promise of the legality principle.

This troubling state of affairs arises most often in the context of order‐maintenance policing. Street encounters are fast‐moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as “Black Lives Matter.”

The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a “procedural” conception of legality, characterized by “modes of argumentation” capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding—articulated and evaluated bilaterally.