Fourth Amendment

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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
2
Essay
75.1
Government Data Mining and the Fourth Amendment
Christopher Slobogin
Stephen C. O’Connell Professor of Law, University of Florida Fredric G. Levin College of Law

The author would like to thank participants in workshops at Stanford Law School and Florida Law School for their feedback on the content of this article, and Victoria Ianni for her research assistance. This paper is a version of a talk given at The University of Chicago Law School’s Surveillance Symposium, June 15–16, 2007.

Fourth Amendment Privacy Technology
2
Article
78.3
Randomization and the Fourth Amendment
Bernard E. Harcourt
Julius Kreeger Professor of Law and Criminology, and Professor and Chair, Department of Political Science, The University of Chicago
Tracey L. Meares
Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School

We thank Bruce Ackerman, Heather Gerken, Richard Helmholz, Aziz Huq, Maximo Langer, Daniel Markovits, Jonathan Masur, Richard McAdams, Adam Samaha, David Sklansky, and Carol Steiker for valuable comments on earlier drafts. We are also grateful to faculty workshop participants at Quinnipiac University Law School, The University of Chicago Law School, Vanderbilt University Law School, and Yale Law School, and to the participants at the University of Chicago Criminal Justice Roundtable. For outstanding research assistance, we thank Jacob Gardener, Liza Khan, Sam Lim, Basha Rubin, Nicolas Thompson, and Diana Watral.

Fourth Amendment Freedom from Unreasonable Search and Seizure Law Enforcement/Policing
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84.4
The Myth of Fourth Amendment Circularity
Matthew B. Kugler
Assistant Professor, Northwestern University Pritzker School of Law

The authors thank Jane Bambauer, Tim Casey, Adam Chilton, Shari Seidman Diamond, Tom Ginsburg, Daniel Hemel, Bert Huang, Aziz Huq, Orin Kerr, Joshua Kleinfeld, Andy Koppelman, Genevieve Lakier, Katerina Linos, Jonathan Masur, Richard McAdams, Janice Nadler, Martha Nussbaum, Laura Pedraza-Fariña, Michael Pollack, Uriel Procaccia, John Rappaport, Richard Re, Victoria Schwartz, Christine Scott-Hayward, Nadav Shoked, Chris Slobogin, Deborah Tuerkheimer, Matt Tokson, and Laura Weinrib, as well as workshop participants at Northwestern University Law School, the University of Chicago Law School, the American Law and Economics Association conference, and the Privacy Law Scholars Conference for comments on earlier drafts, the Carl S. Lloyd Faculty Fund for research support, and Michelle Hayner for helpful research assistance.

Lior Jacob Strahilevitz
Sidley Austin Professor of Law, University of Chicago
It is very difficult to find any proposition in Fourth Amendment law to which every judge, lawyer, and scholar subscribes.
Empirical Analysis Fourth Amendment Privacy

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