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Solove on Fourth Amendment Pragmatism

By Lawrence Solum

Daniel J. Solove (George Washington University Law School) has posted Fourth Amendment Pragmatism (Boston College Law Review, Vol. 51, p. 1, 2010) on SSRN. Here is the abstract:

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

Full post as published by Legal Theory Blog on August 30, 2010 (boomark / email).