Escaping Circularity: The Fourth Amendment and Property Law

53 Pages Posted: 1 Apr 2021 Last revised: 18 Mar 2022

See all articles by João Marinotti

João Marinotti

Indiana University Maurer School of Law; Center for Intellectual Property Research, Indiana University Maurer School of Law; Information Society Project, Yale Law School

Date Written: April 1, 2021

Abstract

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.

This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law.

Keywords: Constitutional Law, Fourth Amendment, Privacy, Property Law, Property Theory, Private Law, New Private Law, Bundle-of-Sticks

JEL Classification: K00, K11, K19

Suggested Citation

Marinotti, João, Escaping Circularity: The Fourth Amendment and Property Law (April 1, 2021). 81(2) Maryland Law Review 641 (2022), Indiana Legal Studies Research Paper No. 442, Available at SSRN: https://ssrn.com/abstract=3816994

João Marinotti (Contact Author)

Indiana University Maurer School of Law ( email )

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Bloomington, IN 47405
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HOME PAGE: http://law.indiana.edu/about/people/details/marinotti-joão.html

Center for Intellectual Property Research, Indiana University Maurer School of Law ( email )

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Bloomington, IN 47405
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://law.yale.edu/joao-marinotti

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