Tuesday, November 21, 2017
Will Baude has this interesting post at The Volokh Conspiracy, applying the theory he and James Stern offered in the Harvard Law Review to this particular controversy. In part:
Many people, and I suspect quite a few of the justices, seem to have the intuition that there is something unsatisfying about current precedents on the third-party doctrine, especially if they are extended into the modern digital realm. At the same time, I can see why they might be worried about replacing the third-party doctrine with a judicial line-drawing approach, such as the mosaic theory.
The positive law model can provide an attractive alternative to both.