Privileges, Justifications, and the Positive Law Model of the Fourth Amendment

10 Pages Posted: 1 Mar 2018 Last revised: 4 Mar 2018

Kevin Cole

University of San Diego School of Law

Date Written: February 27, 2018

Abstract

Justice Gorsuch has recently shown considerable interest in what William Baude and James Stern call "The Positive Law Model of the Fourth Amendment." The model gives central effect to subconstitutional law in determining whether particular police activity constitutes a search or a seizure requiring Fourth Amendment justification. The model promises a solution to "third-party doctrine," which has long been criticized but seems increasingly problematic in a digital age. This brief comment explores how justifications in criminal law and privileges in tort law impact Baude and Stern's model. It concludes that justifications and privileges cause some difficulty for the model, particularly in the area of seizures, but that further elaboration of the model may address these difficulties.

Keywords: search, seizure, justification, privilege, positive law model, reasonable expectation of privacy

Suggested Citation

Cole, Kevin, Privileges, Justifications, and the Positive Law Model of the Fourth Amendment (February 27, 2018). San Diego Legal Studies Paper No. 18-334. Available at SSRN: https://ssrn.com/abstract=3131246 or http://dx.doi.org/10.2139/ssrn.3131246

Kevin L. Cole (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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