Friday, April 3, 2015

Sawers on the History of the Law of Trespass

Brian Sawers has posted Original Misunderstandings: The Implications of Misreading History in Jones (Georgia State Law Review) on SSRN.  Here's the abstract:

This article shines light on a little-noticed but important error in United States v. Jones, the recent Supreme Court Fourth Amendment decision. In Jones, the majority opinion and Justice Alito’s concurrence quibble whether the majority applies “18th-century tort law” in holding that the government’s trespass constitutes a search. Both opinions mistakenly assert that any unwanted intrusion on private property was actionable at common law. While true in England, the American law of trespass provided no remedy for unwanted intrusions to unfenced land.

Current Supreme Court Fourth Amendment jurisprudence recognizes the open fields doctrine, which allows the government to search open land without a warrant. There is little indication now that the Supreme Court wants to overrule the doctrine, so the Justices’ nonchalant approach to history might not change the scope of the Fourth Amendment. But the error could have a serious impact on property law. In recent years, the Supreme Court has exhibited a healthy appetite to both expanding the regulatory takings doctrine and imposing a judicial takings doctrine based on historical nonsense.

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