Trump v. New York, Clapper, and . . . the Fourth Amendment? How Inconsistent Doctrines are Under-Protecting Privacy

Criminal Law Bulletin, Vol. 57 (2021 Forthcoming)

19 Pages Posted: 22 Feb 2021

Date Written: February 1, 2021

Abstract

This Article joins a chorus of scholarly work critiquing Fourth Amendment search doctrine—namely how the Court applies the “reasonable expectation of privacy” (REP) test—but it takes a unique approach by highlighting the doctrine’s inconsistency with recent Article III standing jurisprudence. We hope that holding the doctrines side-by-side will cast new light on the problems with Fourth Amendment privacy protections. Clapper v. Amnesty International and its progeny, including the recent decision in Trump v. New York, may not be a desirable line of cases—but they should have a positive externality to the extent they spur the Court to fix its Fourth Amendment REP doctrine.

Keywords: Criminal Procedure, Fourth Amendment, Search, Clapper, Article III, Standing, Reasonable Expectation of Privacy, knowing exposure, Trump v. New York

JEL Classification: K14, K23, K30, K40

Suggested Citation

Gleckel, Jareb A. and Brosofsky, Grace, Trump v. New York, Clapper, and . . . the Fourth Amendment? How Inconsistent Doctrines are Under-Protecting Privacy (February 1, 2021). Criminal Law Bulletin, Vol. 57 (2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3784810

Jareb A. Gleckel (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Grace Brosofsky

Independent ( email )

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