Fabio Arcila, Jr.

Professor Arcila's 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 published articles in the William & Mary Law Review, the Boston College Law Review (winner, 2010 James Madison prize from the Society for History in the Federal Government for excellence in an article or essay that deals with any aspect of the federal government's history), the University Of Pennsylvania Journal Of Constitutional Law and the Administrative Law Review. Two of those articles have conducted statutory and common law analyses of probable cause, challenging prevailing conventional accounts of Fourth Amendment history. His statutory analysis, for example, 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. His most recent article urges an embrace of Fourth Amendment reasonableness. It questions the originalist provenance of the presumptive warrant and suspicion requirements, and in any case contends that they are unworkable under contemporary constitutionalism. It calls for a revamped jurisprudence that (1) more accurately describes constitutional search and seizure law, and (2) develops alternate means for safeguarding those interests that prior suspicion has traditionally protected. He has also published 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 certiorari on 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. 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 for a writ of certiorari on 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 spent three years as a litigation associate at Fried Frank in New York City. He entered the legal academy full time in 2004 when he joined Touro, and served as a Visiting Associate Professor at Fordham University Law School during 2008-2009. Before joining Touro, he had served as an adjunct professor at Wayne State University Law School and Fordham University Law School.

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