Abstract

http://ssrn.com/abstract=2448617
 


 



Katz Has Only One Step: The Irrelevance of Subjective Expectations


Orin S. Kerr


George Washington University - Law School

June 11, 2014

University of Chicago Law Review, Forthcoming
GWU Law School Public Law Research Paper No. 2014-43
GWU Legal Studies Research Paper No. 2014-43

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. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.

Number of Pages in PDF File: 26

Keywords: Fourth Amendment, Katz, expectation of privacy

JEL Classification: K14, K42

Accepted Paper Series


Download This Paper

Date posted: June 13, 2014 ; Last revised: August 5, 2014

Suggested Citation

Kerr, Orin S., Katz Has Only One Step: The Irrelevance of Subjective Expectations (June 11, 2014). University of Chicago Law Review, Forthcoming; GWU Law School Public Law Research Paper No. 2014-43; GWU Legal Studies Research Paper No. 2014-43. Available at SSRN: http://ssrn.com/abstract=2448617

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
Feedback to SSRN


Paper statistics
Abstract Views: 1,382
Downloads: 386
Download Rank: 42,322

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.297 seconds