Property Law

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Article
Volume 92.3
Decentering Property in Fourth Amendment Law
Michael C. Pollack
Professor of Law & Associate Dean for Faculty Development, Benjamin N. Cardozo School of Law.

The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.

Matthew Tokson
Professor of Law, University of Utah, S.J. Quinney College of Law.

The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.

The canonical test for Fourth Amendment searches looks to whether the government has violated a person’s reasonable expectation of privacy. Yet the Supreme Court has recently added a property-based test to address cases involving physical intrusions. Further, influential judges and scholars have proposed relying primarily on property in determining the Fourth Amendment’s scope. This Article exposes the overlooked flaws of a property-centered Fourth Amendment. It examines the complications of property law, explores the malleability of property rights, and reveals how governments can manipulate them. Normatively, Fourth Amendment regimes based on property are likely to be underinclusive and grounded in trivial physical contact while ignoring greater intrusions. Finally, because property is unequally distributed, its use as a determinant of Fourth Amendment protections risks leaving disadvantaged members of society with the least protection. While property concepts will sometimes be relevant, they should be used very carefully, and very little, in Fourth Amendment law.

Fourth Amendment Property Law
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Comment
Volume 91.7
Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule
Tom Malaga Kadie
B.A. 2019, University of California, Berkeley; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Lior Strahilevitz and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight.

This Comment uses the case study of guns-at-work laws to understand Cedar Point v. Hassid’s per se takings rule as well as its exceptions. Enacted by about half of the States, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles even if those private vehicles are on company property (i.e. parking lots/parking structures). While these laws have long survived Takings Clause challenges, Cedar Point revived the viability of such challenges. Using the example of guns-at-work laws, the Comment seeks both to understand the scope of Cedar Point’s per se takings rule and to clarify and develop the open-to-the-public and long-standing restrictions on property rights exceptions to it.

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87.8
“What Shall I Give My Children?”: Installment Land Contracts, Homeownership, and the Unexamined Costs of the American Dream
Caelin Moriarity Miltko
BA 2017, University of Notre Dame; JD Candidate 2021, The University of Chicago Law School.

I’d like to thank Professor Lior Strahilevitz for his insightful comments on an earlier draft, without which this Comment would not exist in this form at all. I’m also grateful to all the editors of The University of Chicago Law Review for their assistance in editing and refining this piece and to all my friends who listened to me talk about installment land contracts for months as I wrote and rewrote (and rewrote) this Comment.

A white picket fence. A house in the suburbs. 2.5 kids. There may be nothing more central to the modern conception of the American Dream than homeownership.

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86.1
Taking Data
Michael C. Pollack
Assistant Professor of Law, Benjamin N. Cardozo School of Law.

I am grateful to Miriam Baer, William Baude, Maureen Brady, Christopher Buccafusco, David Carlson, Nestor Davidson, Myriam Gilles, Ben Grunwald, Daniel Hemel, Michael Herz, Orin Kerr, Timothy Mulvaney, Luke Norris, John Rappaport, Shelley Ross Saxer, Ric Simmons, Edward Stein, James Stern, Stewart Sterk, Lior Strahilevitz, Matthew Tokson, Felix Wu, Stephen Yelderman, and participants in the AALS New Voices in Property Law Workshop, Cardozo Junior Faculty Workshop, Law and Society Annual Meeting, Mid-Atlantic Junior Faculty Forum at the University of Richmond Law School, and Southeastern Association of Law Schools New Scholars Workshop for their guidance, suggestions, comments, and critiques. I thank the Stephen B. Siegel Program in Real Estate Law for research support.

On February 16, 2016, a federal court ordered Apple to “assist law enforcement agents in enabling the search” of an iPhone that had been lawfully seized during the investigation into a mass shooting in San Bernardino, California.

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