Saturday, February 6, 2010
Alex Reinert (Benjamin N. Cardozo School of Law -- Yeshiva University) has posted Public Interest(s) and Fourth Amendment Enforcement (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
Fourth Amendment events – the recent arrest of Harvard professor Henry Louis Gates, Jr. is one of many examples – generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the Amendment creates only tension between privately-held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the “public interest” seriously in this framework predictably favors government intrusions.
This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony rather than in tension with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests – participatory pluralism and efficient and accurate administration of the criminal justice system – that are implicated by Fourth Amendment questions, but are ignored by the Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes account of these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.