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08/19/2013

Randy Barnett on Donald Dripps on "Papers and Effects"
Michael Ramsey

At Volokh Conspiracy, Randy Barnett comments favorably on Donald Dripps' article  “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)) (noted here).

Among several interesting thoughts I particularly like this one:

The article’s emphasis that the first federal statute altering the common law bar on seizure of private papers (that were not themselves contraband) for later perusal was a revenue act of 1863 reminded me of my co-blogger Will Baude’s superb article on the takings power, in which he shows that the federal government first exercised the power of eminent domain within a state (i.e. not in a territory or other federal jurisdiction) only after the Civil War.  (See William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738 (2013).)  This was news to me.  We tend to attribute current longstanding practices to “tradition” extending back to the Founding, though they developed long after.  Indeed, I have suggested we attribute certain constitutional doctrines to the New Deal Court that were actually Warren Court innovations, such as modern hypothetical “rational basis” scrutiny.  (See my essay, Judicial Engagement Through the Lens of Lee Optical, 19 Geo. Mason L. Rev. 845-860 (2012).)