Fabio Arcila, Jr.

Professor Arcila spent the 2008-2009 year visiting at Fordham Law School. His scholarship focuses upon Fourth Amendment search and seizure law, with a general emphasis upon civil searches and, to date, a concentration upon originalism. He has a forthcoming article in the William & Mary Law Review, and has published articles in the Boston College Law Review, the University Of Pennsylvania Journal Of Constitutional Law and the Administrative Law Review. His two most recently published articles examined the history of suspicion and probable cause from a statutory and common law perspective. His statutory analysis concludes that the Framers used probable cause toward a surprising end: to protect the government, rather than the public. They did so by establishing probable cause as an immunity standard. Another important finding is that they nearly always displaced the jury’s common law role in assessing probable cause in favor of having judges--especially federal judges--make the immunity determination. These factors show that the Framers’ statutory tendency was to decrease access to search remedies. His common law analysis argues that judges during the Framers’ era did not necessarily view the Fourth Amendment as imposing a probable cause sentryship role prior to issuing search warrants, a situation that may have continued well into the 1960s. Both his statutory and common law analyses challenge prevailing conventional accounts of Fourth Amendment history. He also has published an article in the Administrative Law Review, as well as a response essay in the University Of Pennsylvania Journal Of Constitutional Law.

As a result of his article in the Administrative Law Review, he was invited to serve as co-counsel in Smook v. Minnehaha County, South Dakota, No. 06-1034 (S. Ct. Jan. 2007). He participated on a pro bono basis, unsuccessfully seeking to appeal an Eighth Circuit ruling that the Fourth Amendment allows juvenile detention centers to conduct universal, suspicionless strip searches that nearly every circuit has ruled would be unconstitutional if applied to adults. Additionally, he has also participated as pro bono co-counsel in Illinois v. Sloup, No. 05-1367 (S. Ct. Oct. 2006), in which he was the lead author opposing Illinois’s request to appeal a state court holding that the Fourth Amendment prohibited police from using consent to engage in a full blown vehicle search that would otherwise have been prohibited during an involuntary traffic stop, an issue subject to a significant split among federal circuit and state courts. He helped to successfully oppose Illinois’s certiorari petition, which had been identified by SCOTUSBlog as a “Petition To Watch” because it had a “reasonable” chance of being granted.

Professor Arcila attended the University of Michigan and the University of California at Berkeley Law School, where he was an associate editor of the La Raza Law Journal and a member of the California Law Review. After graduating from law school in 1994, he worked for three years as a staff attorney for Legal Services of Southeastern Michigan, Inc., then clerked for both the Honorable Julian Abele Cook, Jr. on the United States District Court for the Eastern District of Michigan and for the Honorable Julio M. Fuentes on the United States Court of Appeals for the Third Circuit. After his clerkship with Judge Fuentes ended in 2001, he served as a litigation associate at Fried, Frank, Harris, Shriver & Jacobson in New York City until 2004. Prior to entering academia full time, he had served as an adjunct professor at Wayne State University Law School and at Fordham University School of Law.

He is on the Executive Board of the AALS Section on Minority Groups and serves on numerous of its subcommittees; serves on the planning committees for the Third National People of Color Legal Scholarship Conference and the annual Northeast People of Color Legal Scholarship Conference; and is active in the Hispanic National Bar Association. He is admitted to the New York bar and is a former member of the Michigan bar.

His publications can be accessed either through links on this page or through the Social Science Research Network (SSRN) at: http://ssrn.com/author=399048