CrimProf Blog

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

Friday, April 12, 2024

Scott-Hayward et al. on Empirical Scholarship in Fourth Amendment Privacy Jurisprudence

Christine S. Scott-HaywardHenry F. Fradella, and Gerald Eastwood (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management, Arizona State University - School of Criminology and Criminal Justice and Arizona State University) have posted The Role of Empirical Scholarship in Fourth Amendment Privacy Jurisprudence (Florida State University Law Review, Vol. 52) on SSRN. Here is the abstract:
In Katz v. United States, the U.S. Supreme Court held that the Fourth Amendment protects against unreasonable searches and seizures that violate a person’s reasonable expectation of privacy. Courts routinely assess rights in this context by applying Justice Harlan’s concurring opinion in Katz, which involves “a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as [objectively] ‘reasonable.’” When applying the second part of Harlan’s test, courts traditionally use normative legal principles even though it poses what many scholars consider to be an empirical question. Using the methods of social science, a small but growing body of research sheds light on the circumstances in which society expects privacy. This scholarship could help attorneys support Fourth Amendment arguments and, correspondingly, assist judges in resolving such claims. This Article presents the results of a systematic content analysis examining how lawyers use empirical research in briefs submitted to courts in which they make Fourth Amendment privacy arguments and, correspondingly, how courts then engage with the research findings brought to their attention. The results suggest that few courts have embraced the use of empirical research to support their opinions even though doing so could improve the quality of their legal reasoning and increase the legitimacy of case outcomes and courts as institutions.

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