Friday, March 29, 2013
Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Rebalancing the Fourth Amendment (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing — that a criminal defendant is protecting the rights of all of society — these constitutional inquiries fail to protect broader privacy rights and equal protection interests implicated by the Fourth Amendment.
This Article takes an in-depth look at this fundamental flaw with an original and comprehensive analysis of Supreme Court cases and proposes a new model of the Fourth Amendment that alleviates this problem. This Article reveals that since 1990 the Supreme Court sided with government interests in approximately 8 out of 10 criminal procedure cases. It also discovers that parties fail to present data to courts, which leaves courts lacking appropriate information. This leads to what I refer to as “blind balancing.” Indeed, blind balancing demonstrates several dangers — specifically common sense errors, inconsistences between similar cases, and reliance on hypothetical threats. After identifying these problems, this Article considers a new model for the Fourth Amendment. This model envisions a major shift in Fourth Amendment balancing towards considering broader statistical data and facts to inform decisions and educate courts to consider not only the defendant before them but the rights of society implicated in every case.