Katz and the Origins of the 'Reasonable Expectation of Privacy' Test

12 Pages Posted: 8 Dec 2008

See all articles by Peter A. Winn

Peter A. Winn

University of Washington - School of Law

Date Written: October 29, 2008


The reasonable expectation of privacy test, formulated in the 1967 case of Katz v. United States, represents a great touchstone in the law of privacy. Katz is important not only because the test is used to determine when a governmental intrusion constitutes a search under the Fourth Amendment; but also because the test has also found its way into state common law, statutes and even the laws of other nations. The credit for the development of the test belongs to counsel for Charles Katz, Harvey (now Judge) Schneider, who presented the test for the first time in his oral argument, not in his briefs. The majority opinion's curious failure to mention the test is explained by the fact that the law clerk responsible for drafting Justice Stewart's majority opinion missed the oral argument. Given this context, the articulation of the test in Justice Harlan's short concurring opinion is all the more remarkable, establishing him as not only a great jurist, but as a judge who knew how to listen.

Keywords: legal history, reasonable expectation of privacy, privacy, search and seizure, Fourth Amendment, John Marshall Harlan, Potter Stewart, Laurence Tribe

JEL Classification: K14, K41

Suggested Citation

Winn, Peter A., Katz and the Origins of the 'Reasonable Expectation of Privacy' Test (October 29, 2008). McGeorge Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1291870

Peter A. Winn (Contact Author)

University of Washington - School of Law

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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