1. What have the authors contributed in "Fourth amendment textualism" ?
Ohm et al. this paper argued that the Fourth Amendment does not require a reasonable expectation of privacy for a cell-site location.
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Fourth Amendment Textualism
TL;DR: In this article, a three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court.
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Abstract: The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the Justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few Justices in open revolt.
These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The Justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit the same complexity, subjectivity, and illegitimacy that pervade the status quo.
This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from “search” jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation, while incentivizing legislators to add additional privacy protections where needed.
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Citations
The Sacred Fourth Amendment Text
Christopher Slobogin
- 01 Jan 2020
Abstract: The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as reasonable—scholars have attempted to define the Amendment’s threshold by reference to history, philosophy, linguistics, empirical surveys, and positive law. With the advent of technology that more easily records, aggregates, and accesses public activities and everyday transactions, the cacophony on the threshold issue has grown deafening—especially so after the Supreme Court’s decisions in United States v. Jones and Carpenter v. United States. In these decisions, the Court seemed to backtrack from its previously established notions that public travels and personal information held by third parties are not reasonably perceived as private and are therefore not protected by the Fourth Amendment.
•Posted Content
Legal Remedies for Police Misconduct
TL;DR: In this paper, the authors argue that because there are so many mechanisms for scrutinizing police conduct, officers often feel over-regulated, leading communities to distrust these mechanisms and distrust these solutions as well.
2
‘Liberty Finds No Refuge in a Jurisprudence of Doubt’: Sexual Morality as Seen by Supreme Courts in France and the USA
Marc Olivier Baruch
- 01 Jan 2017
TL;DR: Baruch as discussed by the authors examined and compared the French and American judicial review processes with regard to the issue of abortion and concluded that judicial review is both too recent and limited a tool to be a weapon in the conservative arsenal.
1
Corpus of Founding Era American English: designing a corpus for interpreting the United States Constitution
TL;DR: The Corpus of Founding Era American English (cofea) as mentioned in this paper provides evidence for the meaning of contested terms during the Founding Era, including the US Constitution, and has been used by legal researchers and interpreters in scholarly research as well as various courts.
1
References
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Relative Doubt: Familial Searches of DNA Databases
TL;DR: In this article, the authors argue against the practice of familial searching on a variety of grounds, including claims related to equality, accuracy, privacy, racial discrimination, and democratic accountability, and in the event that arguments to prohibit the practice prove unpersuasive, they set forth recommendations for restrictions on familial searches that might ameliorate their possible iniquitous effects.
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The Sacred Fourth Amendment Text
Christopher Slobogin
- 01 Jan 2020
Abstract: The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as reasonable—scholars have attempted to define the Amendment’s threshold by reference to history, philosophy, linguistics, empirical surveys, and positive law. With the advent of technology that more easily records, aggregates, and accesses public activities and everyday transactions, the cacophony on the threshold issue has grown deafening—especially so after the Supreme Court’s decisions in United States v. Jones and Carpenter v. United States. In these decisions, the Court seemed to backtrack from its previously established notions that public travels and personal information held by third parties are not reasonably perceived as private and are therefore not protected by the Fourth Amendment.
•Posted Content
Legal Remedies for Police Misconduct
TL;DR: In this paper, the authors argue that because there are so many mechanisms for scrutinizing police conduct, officers often feel over-regulated, leading communities to distrust these mechanisms and distrust these solutions as well.
2
‘Liberty Finds No Refuge in a Jurisprudence of Doubt’: Sexual Morality as Seen by Supreme Courts in France and the USA
Marc Olivier Baruch
- 01 Jan 2017
TL;DR: Baruch as discussed by the authors examined and compared the French and American judicial review processes with regard to the issue of abortion and concluded that judicial review is both too recent and limited a tool to be a weapon in the conservative arsenal.
1