Wednesday, September 15, 2010
Stephen E. Henderson (Widener University School of Law) has posted The Timely Demise of the Fourth Amendment Third Party Doctrine (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend or invoke it, and lower courts seem to be responding to that shift. In the relatively short space allotted, I place Tokson's thoughtful argument in this greater context, and briefly reply to related arguments of Professor Kerr and Judge Posner.