How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together
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This Essay explores an entanglement of ends and means between two seemingly disparate parts of the Constitution: the Fourth Amendment and the separation of powers. Not only do these two elements of the Constitution share a common ambition; they are also intertwined in practical operation. The vindication of Fourth Amendment interests, however defined, depends on a measure of institutional differentiation between the branches of government. That predicate, however, has eroded over time. In its absence, difficult questions arise about how Fourth Amendment values are best implemented and whether their realization will in the end hinge on private rather than on state action.
Beware dark patterns. The name should be a warning, perhaps alluding to the dark web, the “Dark Lord” Sauron, or another archetypically villainous and dangerous entity. Rightfully included in this nefarious bunch, dark patterns are software interfaces that manipulate users into doing things they would not normally do. Because of these First Amendment complications, the constitutionality of dark pattern restrictions is an unsettled question. To begin constructing an answer, we must look at how dark patterns are regulated today, how companies have begun to challenge the constitutionality of such regulations, and where dark patterns fall in the grand scheme of free speech. Taken together, these steps inform an approach to regulation going forward.
Special thanks to Mario Barnes, Courtney Douglas, Paul Gowder, Deborah Turkheimer, to the audience at Northwestern Law’s Julian Rosenthal Lecture, and to Miranda Coombe, Sam Hallam, Caroline Kassir, and Danielle O’Connell for superb editing. Adeleine Lee and Alex Wilfert provided excellent research assistance. The authors contributed equally to this essay.
Antidemocratic forces rely on intimidation tactics to silence criticism and opposition. Today’s intimidation playbook follows a two-step pattern. We surface these tactics so their costs to public discourse and civic engagement can be fully understood. We show how the misappropriation of the concept of online abuse has parallels in other efforts at conceptual diversion that dampen democratic guarantees. Democracy’s survival requires creative solutions. Politicians and government workers must be able to operate free from intimidation. Journalists and researchers must be able to freely investigate governmental overreach and foreign malign influence campaigns that threaten the democratic process. Surfacing the two-step strategy is a critical start to combating it.
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 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.