A Partial Property Rights Theory of the Fourth Amendment

Abstract

Fourth Amendment doctrine has struggled to meet its two objectives: providing meaningful restraints on government action and a conceptually workable basis for deciding what those restraints are. This doctrine’s evolution has often placed these objectives at odds. The prevailing reasonable expectation of privacy test often gets intuitively good results at the expense of conceptual clarity, while the older, property-based approach offers clearer tests but risks being ascetic in application. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” Note: attached draft is the draft that will be workshopped at the 2021 Privacy Law Scholars Conference.

Keywords: Fourth Amendment, privacy, property law