The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Final version of 'The Effect of Legislation on Fourth Amendment Protection'


I've been silent on the blog for a while—I've been tweeting my way through current events rather than blogging about them—but I wanted to flag the publication of my latest article, The Effect of Legislation on Fourth Amendment Protection, 115 Michigan Law Review 1117 (2017). The abstract:

When judges interpret the Fourth Amendment, and privacy legislation regulates the government's conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature's handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.

This issue will come up soon at the Supreme Court if the justices agree to review the still-pending petitions on Fourth Amendment protection for cell-site data. As always, stay tuned.