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Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's

Michigan Law Review First Impressions, Vol. 111, p. 21, February 2013

6 Pages Posted: 9 Feb 2013  

Brian Sawers

Emory University School of Law

Date Written: February 7, 2013

Abstract

Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.

Keywords: Fourth Amendment, open fields doctrine, trespass

JEL Classification: K11

Suggested Citation

Sawers, Brian, Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's (February 7, 2013). Michigan Law Review First Impressions, Vol. 111, p. 21, February 2013. Available at SSRN: https://ssrn.com/abstract=2213947

Brian Sawers (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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