The Law of Banksy: Who Owns Street Art?
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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.
This Article greatly benefited from comments and criticisms by Ben Depoorter, Lee Anne Fennell, Mark Fenster, Sonia Katyal, Jim Krier, Tom Merrill, Adam Mossoff, Dan Richman, Ed Rock, Carol Rose, Chris Serkin, Peter Siegelman, Henry Smith, Phil Weiser, and participants in the 2007 Property Works in Progress Conference at the University of Colorado Law School.