The Positive Law Floor

25 Pages Posted: 9 May 2016 Last revised: 18 May 2016

See all articles by Richard M. Re

Richard M. Re

University of Virginia School of Law

Date Written: May 10, 2016

Abstract

The positive law model of the Fourth Amendment maintains that a search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The positive law model thus treats laws applicable to private parties as a ceiling on Fourth Amendment protections. But government action is fundamentally different — and often more deserving of regulation — than similar conduct by private parties. Due to its distinctive capabilities, incentives, and social role, the government often threatens the people’s security in ways that private parties simply do not. Still, we can learn from analogies to private parties without being limited by them. The way to do that, I briefly suggest, is to view privacy-related measures applicable to private parties as presumptively triggering the Fourth Amendment’s prohibition on unreasonable searches. I call this alternative approach the “positive law floor.”

Suggested Citation

Re, Richard M., The Positive Law Floor (May 10, 2016). 129 Harv. L. Rev. F. 313 (2016), Available at SSRN: https://ssrn.com/abstract=2777629

Richard M. Re (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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