The Illusory Promise of General Property Law

Abstract

Federalized, jurisdictionless property law is ascendant in the Supreme Court’s recent majority opinions on the Takings Clause—and in Danielle D’Onfro and Daniel Epps’s Article, The Fourth Amendment and General Law, D’Onfro and Epps tout the benefits of courts developing a national law of property and torts in assessing whether a person has suffered an unlawful search or seizure. In this Response, I criticize the version of “general law” outlined in their Article, both on its own terms and for its implications for property law specifically. The development of takings law teaches that efforts to make a national law of property are inevitably indeterminate and may threaten continued variation in property rules at the state level, variation that currently has beneficial effects. After advocating against the use of general law in constitutional contexts that involve property, this Response concludes by sketching a “patterning approach” to the Fourth Amendment: an approach, first developed by scholars in takings law, that defines protected interests by reference to uniform federal criteria met (or unmet) by nonconstitutional state law. A patterning approach to the Fourth Amendment might offer one of the attractions of the general law model—the way it reasons usefully from private-law doctrines—without the associated costs.

Keywords: Property, Federalism, General Law, Local Law, Fourth Amendment, Erie, Swift, Criminal Procedure, Takings, Search and Seizure