Escaping Circularity: the Fourth Amendment and Property Law

56 Pages Posted: 1 Apr 2021 Last revised: 21 Apr 2021

See all articles by João Marinotti

João Marinotti

Center for Law, Society and Culture, Indiana University Maurer School of Law; Information Society Project, Yale Law School; Center for Intellectual Property Research, Indiana University Maurer School of Law; The City University of New York - The Graduate Center, City University of New York

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 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 presumes that property law is not itself circular. If it were, property would be subject to the very same criticisms that plague the reasonable expectations of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. In this way, the standard realist bundle analysis 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 is the first to apply the “New Private Law” research framework in the context of the Fourth Amendment, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that the concept of “legal thinghood” provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, does require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by interdisciplinary approaches.

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 (Forthcoming, 2022), Indiana Legal Studies Research Paper No. 442, Available at SSRN: https://ssrn.com/abstract=3816994

João Marinotti (Contact Author)

Center for Law, Society and Culture, Indiana University Maurer School of Law ( email )

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Bloomington, IN 47405
United States

Information Society Project, Yale Law School ( email )

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United States

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

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

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Bloomington, IN 47405
United States

The City University of New York - The Graduate Center, City University of New York ( email )

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