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New law review article: "An Equilibrium-Adjustment Theory of the Fourth Amendment"

By John Wesley Hall, Jr.

Orin Kerr: An Equilibrium-Adjustment Theory of the Fourth Amendment, noted on Volokh Conspiracy. Abstract: Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions. This Article introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules: The theory of equilibrium-adjustment. The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection...continue to full post

Full post as published by Fourth Amendment on January 27, 2011 (boomark / email).