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Fourth Amendment Pragmatism

28 Pages Posted: 27 Aug 2010 Last revised: 6 Mar 2013

Daniel J. Solove

George Washington University Law School

Abstract

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

Keywords: Fourth Amendment, Search, Pragmatism, Criminal Procedure

JEL Classification: D80, H10

Suggested Citation

Solove, Daniel J., Fourth Amendment Pragmatism. Boston College Law Review, Vol. 51, p. 1511, 2010; GWU Law School Public Law Research Paper No. 510; GWU Legal Studies Research Paper No. 210. Available at SSRN: https://ssrn.com/abstract=1666828

Daniel J. Solove (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-9514 (Phone)

HOME PAGE: http://danielsolove.com

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