Concreteness Drift and the Fourth Amendment

The title of this post comes from this paper by Professor Luke M. Milligan claiming that the Supreme Court's decision in Katz v. United States  has not "reorient[ed] interpretations of the Fourth Amendment" as many had anticipated. Here's the abstract: 

Katz v. United States was expected to reorient interpretations of the Fourth Amendment. This was not simply because Katz repealed the constitutional rules governing electronic eavesdropping established in Olmstead v. United States. Rather, it was because Katz called for doctrinal reform across a broad swath of cases-the entire catalogue of "search" issues-and it supplanted a mechanical rule with an open standard based on contextual and evolving societal expectations. Of course the hope of Katz would prove hollow. In forty-five years, Katz has had only a marginal impact on the Court's "search" decision-making. Put more directly, Katz has failed to direct judges to evaluate the term "search" based on contextual and evolving privacy norms. Explanations for Katz's failure come in many forms: some point to the resilience of the justices' personal juridical and policy preferences; others to the vagueness of the Katz opinions themselves; and still others to the inaccessibility of good empirical data regarding "reasonable expectations of privacy." I agree, more or less, with each of these explanations. Yet I believe that the prevailing explanations are somewhat incomplete. This essay seeks to offer a fuller picture of Katz's failure.

CRL&P related posts:

• Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar
• The legislative response to mass police surveillance
• Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment
• Excessive force claims under Fourth Amendment less protective when police use tasers?