CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 7, 2023

Brady on D'Onfro & Epps on General Property Law and the Fourth Amendment

Maureen E. Brady (Harvard Law School) has posted The Illusory Promise of General Property Law (132 Yale L.J.F. (2023 Forthcoming)) on SSRN. Here is the abstract:
In The Fourth Amendment and General Law, Danielle D’Onfro and Daniel Epps endorse an approach to the Fourth Amendment that defines the scope of protection largely by reference to "general property law"—uniform principles of trespass, abandonment, and so forth—discerned from and informed by the customs and rules of multiple jurisdictions. While their approach attractively reasons from useful common-law and private-law concepts, the specific general-law model they outline has both unresolved internal puzzles and unaddressed external effects.

In this Response, I probe this vision of “general law,” which has the potential to be more open-ended and unconstrained than the general law as it has previously been understood. Even if it did more closely resemble traditional general law, a court’s resort to making general law in a particular context is typically justified by some federal interest or power meriting the application of uniform rules. The authors do not satisfactorily explain that need here, especially given traditional deference to positive state law—and the desirability of some variation reflecting local conditions and expertise—in matters involving property questions in other areas of constitutional law. Further, in justifying reliance on the general law, the authors over-sell its determinacy and stability vis-à-vis existing Fourth Amendment law, which assesses whether an individual’s “reasonable expectations of privacy” have been violated. Given the vagaries of some common-law standards and the breadth of the sources of general law, courts will still be faced with unclear choices within and among them. The general-law approach does not offer guidance on resolving these conflicts and uncertainties, dooming it to the same indeterminacy.

To illustrate with specific examples, I turn to a doctrinal area where the pitfalls of general law—and specifically, general property law—can already be observed: in recent decisions under the Takings Clause of the Fifth Amendment. Decisions interpreting the Takings Clause traditionally “emphasiz[ed] the role of nonconstitutional state property law in defining both what counts as constitutional property and in measuring whether a taking has occurred.” The presumption of deference to state-specific property principles was grounded in a belief that property is an inherently local matter and that different states might opt to recognize and regulate property interests differently. However, two Supreme Court decisions within the last five years—Murr v. Wisconsin and Cedar Point Nursery v. Hassid—have unsettled that longstanding tradition with troubling effects. Takings law also teaches that decisions by courts in federal constitutional cases can influence the direction of nonconstitutional state private law, even though that result is not compelled.

There is an approach that would carry some of the benefits of the general-law model while leaving most of the development of property law to the states. In articles covering the Due Process and Takings clauses, Thomas Merrill has advocated for a “patterning definition” of constitutional property—a set of federal criteria that are met (or not) by the characteristics an interest has under nonconstitutional state law. The idea behind patterning is to provide a baseline, uniform constitutional standard across the states—one of the key purported advantages of the general-law model over the positive-law one—without having courts make a confusing national law of property specific for federal purposes. While private law can helpfully frame and elucidate Fourth Amendment problems, the general-law model offers limited promise for the development of Fourth Amendment doctrine while posing unwarranted risks for the viability of variable state property law.

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