Saturday, June 21, 2014
Orin S. Kerr (George Washington University - Law School) has posted Katz Has Only One Step: The Irrelevance of Subjective Expectations (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.
The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure.