The Fourth Amendment and General Law

68 Pages Posted: 21 Mar 2022

See all articles by Danielle D'Onfro

Danielle D'Onfro

Washington University in St. Louis - School of Law

Daniel Epps

Washington University in St. Louis - School of Law

Date Written: March 15, 2022

Abstract

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy towards property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret the Fourth Amendment’s protections by looking to “general law”—the common law that is under the control of no particular sovereign. Courts looking to general law would draw on ancient property concepts such as trespass, license, and bailments in determining the scope of protections. But they would also draw on custom, social practices, and modern legal developments to identify and flesh out common-law rules unknown at the Founding.

The general-law approach has numerous advantages over competitor theories. It makes more sense of the Fourth Amendment’s text and has deeper roots in its history. It is surprisingly easy to reconcile with a great deal of Fourth Amendment doctrine, while also suggesting important refinements in various areas. And it gives courts the flexibility to protect Fourth Amendment values in a changing world while also structuring and guiding the judicial task more than an untethered inquiry into privacy expectations. Private law, then, holds the key to understanding the Fourth Amendment’s limits on public power.

Keywords: criminal procedure, fourth amendment, private law, property, positive law, general law

Suggested Citation

D'Onfro, Danielle Frances and Epps, Daniel, The Fourth Amendment and General Law (March 15, 2022). 132 Yale Law Journal (2023 Forthcoming), Available at SSRN: https://ssrn.com/abstract=4058543 or http://dx.doi.org/10.2139/ssrn.4058543

Danielle Frances D'Onfro

Washington University in St. Louis - School of Law ( email )

1 Brookings Drive
Campus Box 1120
St. Louis, MO 63130
United States
3149356404 (Phone)

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

HOME PAGE: http://https://law.wustl.edu/faculty-staff-directory/profile/daniel-epps/

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