Short Circuit 293 | General Law for the Fourth Amendment

It’s a Short Circuit Special this week, all about that part of the Constitution that is supposed to keep away unreasonable searches and seizures—the Fourth Amendment. We’re joined by Professor Dan Epps of Washington University in St. Louis. Dan is the co-author, along with his Wash U colleague Danielle D’Onfro, of The Fourth Amendment and General Law, an article that the Yale Law Journal recently published. They make the argument there that when courts are trying to determine what’s a search or a seizure they should look to whether government officials have broken the law that the rest of us have to follow. And to figure out what that “law” is, courts should look to the general law of the United States, not the particular law of a particular state or city. And what is the “general law”? Well, listen to find out. Their piece is one of the latest arguments in an ongoing debate both at the Supreme Court and elsewhere about how the Court’s “reasonable expectation of privacy” test doesn’t work and how it should be replaced. We discuss some of the background of this debate, including some of Justice Scalia’s rulings late in his life that got it really going, other arguments for where the Court should go, and Dan and Danielle’s argument. Anyone interested in the Fourth Amendment and its intersection with property rights may find the conversation especially interesting, as well as anyone interested in the “general law,” the common law, and the conception of law as a spontaneous order and not just the command of a sovereign.

Click here for transcript.

The Fourth Amendment and General Law

The Positive Law Model of the Fourth Amendment

U.S. v. Jones (2012)

U.S. v. Carpenter (2018)

Blog post on Katz puns

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