Tuesday, February 27, 2018
Law review articles are rarely mentioned in Supreme Court oral arguments. William Baude and James Stern’s article, The Positive Law Model of the Fourth Amendment, is now an exception to the general rule. Justice Gorsuch displayed obvious interest in the theory during the recent argument on whether the Fourth Amendment protects a suspect’s cell site information location (Carpenter). He went a step further in oral argument over whether the Fourth Amendment protects the driver of a rental car who has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement (Byrd), explicating referencing Baude and Stern’s article. In addition to its interest to Justice Gorsuch, the positive law theory deserves attention because of its potential to refigure “third-party doctrine,” which holds that people sometimes lack a reasonable expectation of privacy in material they voluntarily disclose to others, and hence that no Fourth Amendment search occurs when the material is obtained by police. As our lives have become increasingly digital, the third-party doctrine has been increasingly criticized.
While others have discussed the positive law model insightfully and at length, I've written a brief comment exploring an unexamined issue: how privileges and justifications impact the model. In brief, I think they pose some difficulties, particularly in the area of seizures, but that some elaboration of the model might nevertheless make it palatable in this setting. You can find the piece here. Comments welcome.