The Ostensible (and, at Times, Actual) Virtue of Deference

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judi-cial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the of-ficer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s norma-tive potential is weakened by the sharp conceptual distinction it draws between judicial under-standings of expertise as a “professional virtue” (which it condemns) and judicial understandings of expertise as a “professional technology” (which it applauds). This conceptual framework fails to capture a simple and well-grounded intuition that reformers should accommodate: While it may be an error for judges to treat expertise as an inherent virtue, it may in certain contexts be virtuous of them to defer to expertise.