A Partial Property Rights Theory of the Fourth Amendment

42 Pages Posted: 31 Mar 2021 Last revised: 17 Aug 2021

See all articles by Mailyn Fidler

Mailyn Fidler

University of Nebraska-Lincoln

Date Written: March 6, 2021


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

Suggested Citation

Fidler, Mailyn, A Partial Property Rights Theory of the Fourth Amendment (March 6, 2021). Available at SSRN: https://ssrn.com/abstract=3799319 or http://dx.doi.org/10.2139/ssrn.3799319

Mailyn Fidler (Contact Author)

University of Nebraska-Lincoln ( email )

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