Pragmatism and Privacy
34 Pages Posted: 5 Dec 2019
Date Written: September 1, 2010
I include this 2010 paper in my SSRN profile "reboot" uploads because I cite it in my recent amicus brief for the Center for the Legalization of Privacy in United States v. Facebook.
My purpose in this paper was to examine how we got where we are today in terms of legal pro-tection for privacy — how “society” acquired the power to decide whether an individual’s expectation of privacy is “reasonable” and therefore worthy of legal protection. I tried to show that we got here, in large part, due to a particular theory of adjudication influencing the thinking of the right Supreme Court Justices at the right time. The theory, legal pragmatism, is often attributed to Justice Oliver Wendell Holmes, and continues to be applied and de-fended by respected judges and legal scholars.
In Part I of this paper, I discuss pragmatism, both as a school of philosophy, and as a theory of adjudication, in order to prepare the reader for the analysis that follows. In Part II, I analyze, chronologically, significant Fourth Amendment privacy cases that laid the groundwork for Katz v. United States, starting with Justice Brandeis’s dissent in Olmstead v. United States, and finishing with the majority and concurring opinions in Berger v. New York. In Part III, I look at Katz itself, focusing not only on evidence of legal pragmatism in the majority opinion and in Harlan’s concurrence, but also on the pragmatic nature of the “reasonable expectation of privacy” test itself. Finally, in Part IV, I consider whether the Court’s opinion in Kyllo v. United States represents a fundamental methodological departure from its earlier cases, such that we will enjoy more robust legal protection for privacy if the Court continues to follow this approach.
Keywords: privacy, legal pragmatism, fourth amendment, Katz test, reasonable expectation of privacy
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