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The Modest Role of the Warrant Clause in National Security Investigations


Orin S. Kerr


George Washington University - Law School

November 19, 2011

Texas Law Review, Vol. 88, p. 1669, 2010
Texas Law Review Symposium: National Security, Privacy, and Technological Change, February 5, 2010
GWU Law School Public Law Research Paper No. 497
GWU Legal Studies Research Paper No. 497

Abstract:     
Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? This symposium essay argues that the Warrant Clause has a narrow role because the extension of the Warrant Clause into national security law forces courts to pose a question that judges cannot readily answer. The cases extending the Warrant Clause to the national security setting held that warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable. This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Cause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give the Court flexibility forces judges to ask a question they are particularly poorly-equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice.

Number of Pages in PDF File: 16

Keywords: Fourth Amendment, national security

JEL Classification: K14

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Date posted: March 19, 2010 ; Last revised: November 23, 2011

Suggested Citation

Kerr, Orin S., The Modest Role of the Warrant Clause in National Security Investigations (November 19, 2011). Texas Law Review, Vol. 88, p. 1669, 2010; Texas Law Review Symposium: National Security, Privacy, and Technological Change, February 5, 2010; GWU Law School Public Law Research Paper No. 497; GWU Legal Studies Research Paper No. 497. Available at SSRN: http://ssrn.com/abstract=1571941

Contact Information

Orin S. Kerr (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)
HOME PAGE: http://www.law.gwu.edu/faculty/profile.asp?ID=3568
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