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11/22/2015

Donald Dripps: "Perspectives on the Fourth Amendment" Forty Years Later
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted "Perspectives on the Fourth Amendment" Forty Years Later: Toward the Realization of an Inclusive Regulatory Model (Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:      

The Minnesota Law Review published Anthony Amsterdam’s celebrated Holmes Lectures just over forty years ago. Those lectures defended a normative, or at least very generally historical approach to the definition of “searches and seizures,” and a “regulatory model” as opposed to an “atomistic model” for assessing when "searches and seizures" are reasonable or “unreasonable.” Fourth Amendment jurisprudence substantially, but not yet completely, adopts these normative and regulatory templates. 

The Article argues that technological and institutional changes may finally usher in a Fourth Amendment regime much like the one Professor Amsterdam defended. Technological change is driving a practical merger of historical and normative interpretive approaches. A sophisticated historical approach concerns itself less with founding-era rules than with the values those rules reflected. The contemporary quest for historical value judgments is unlikely to veer very far from the quest for sound value judgments today. As examples, the Article considers historical analogues to GPS location tracking and to third-party subpoenas, and concludes that while historical evidence cuts against the third-party doctrine and in favor of the mosaic theory, history neither clearly requires nor clearly forbids either doctrine. 

Although some strands of Fourth Amendment doctrine still reflect the atomistic approach, technological and institutional changes have the potential to usher in a thoroughly regulatory regime. It should come as no surprise that rapid technological and institutional changes occasionally undermine the justification of particular rules, driving a turn toward Fourth Amendment law articulated as rules subject to rapid revision, including occasional reversions to general standards. Institutional reform injunctions are now applying the regulatory perspective even in areas where the Supreme Court has clung to atomism. 

These changes are underway, and should be encouraged. Toward that end, this article proposes two illustrative reforms. The first is making the Fourth Amendment third-party doctrine depend on the availability of an individual opt-out. The second is a federal program to certify local police departments for compliance with constitutional standards. 

Time may falsify my prophecy. In that case, Professor Amsterdam would have framed the issues for half a century without the vindication of practical success. "Perspectives on the Fourth Amendment" would still be ranked among the masterpieces of legal scholarship for just that — for framing deep and abiding issues with immense learning, acute analysis, and exquisite rhetoric.

(Via Larry Solum at Legal Theory Blog).