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Friday, February 02, 2018

The Hayekian Fourth Amendment

Thanks to Howard and the other PrawfsBlawg folks for allowing me to blog here the last couple of months.  I wanted to leave with another blurb about my piece, “A Unified Approach to Fourth Amendment Search Doctrine.”  As I mentioned in a previous post, and as the title suggests, the upshot is that the “reasonable expectation of privacy” (REOP) approach and the “trespass” approach to determining when a Fourth Amendment search has occurred really devolve, at least in many cases, into the same inquiry.  This is because, at least at the margins, whether a trespass has occurred will often depend on the same kind of social norms and customs that form the backbone of the REOP test.

The title of this post refers to another aspect of the piece:  that these social norms and customs form, and have always formed, from the ground up.  Our law is better seen as “grown law,” as Hayek put it, rather than as being imposed from above.  True, fully formed law in the positive law sense consists of an edict backed up by state power.  But the origin of all laws is in the people’s lived experiences.  It is bottom-up, not top-down.  From this premise, the search for nationwide standards for what constitutes a Fourth Amendment search, either via the REOP approach or the “trespass” approach, is highly questionable.

Posted by Michael J.Z. Mannheimer on February 2, 2018 at 04:30 PM in Constitutional thoughts | Permalink


htt ps://law.justia. com/cases/california/supreme-court/4th/27/1161.html

In June 1982 the voters, by adopting Proposition 8, added section 28, subdivision (d) (section 28(d)), the "Right to Truth-in-Evidence" provision, to article I of the California Constitution. This section provides that except under certain statutes already in effect, or thereafter enacted by two-thirds vote of each house of the Legislature, "relevant evidence shall not be excluded in any criminal proceeding."

Posted by: excluding Mapp | Feb 5, 2018 3:18:38 AM


Perhaps it is worth considering the possibility that "social norms and customs" and "the people's lived experiences" explain why state law generally offers relatively modest tort remedies for unlawful search and seizure. Even here in liberal California, "social norms and customs" and "the people's lived experiences" resulted in the passage of a referendum abolishing the exclusionary rule. Perhaps one unintended consequence of a rule that would invariably supplement state=law remedies with a federal exclusionary rule would be the watering down of state-law restrictions on search and seizure. I suspect that most legal scholars would be quite disappointed with a Fourth Amendment jurisprudence that accurately reflected "social norms and customs" and "the people's lived experiences," at least if the concept of "unreasonable" search and seizure took some account of widespread sentiment (at least in most states) supporting aggressive law enforcement.


Posted by: Lawrence Rosenthal | Feb 5, 2018 12:33:19 AM

If an ICE agent violates state law, but not federal law [including the 4th Amendment], in the course of their duties, what happens? Is there any liability in practice, including current regulations? Can the state or perhaps a locality (e.g., the law of a city is violated) arrest the person for trespassing, assault or whatnot?

Replace "ICE agent" with some other federal official.

Posted by: Joe | Feb 4, 2018 2:30:43 PM


The Fourth (and Fourteenth) Amendments still serve a vital purpose in checking broad executive discretion in searching and seizing. No matter what state law says, we are still in danger of being insecure in our persons, houses, papers, and effects if the police fail to follow the law, which they sometimes do, and if after-the-fact tort remedies are ineffective, which they usually are. The paradigmatic Fourth Amendment violation for me is what happened in Olmstead: federal agents violated state law in conducting a search. The paradigmatic Fourth-via-Fourteenth Amendment violation for me is what happened in Virginia v. Moore: state police violated state law in conducting a seizure and search, because whatever else the words "due process of law" mean, they mean that state executive officers must follow state law. Of course, in both cases, the Court saw things differently.

If I could summarize my still-evolving views in one sentence -- always a hazard, I know -- it would be this: the Fourth Amendment requires federal officials to follow state law when searching and seizing, and the Fourteenth Amendment requires state officials, at the least, to follow state law when searching or seizing.

Posted by: Michael J.Z. Mannheimer | Feb 4, 2018 2:07:32 PM

Very interesting! When I saw your title, I expected you to go in a different direction, which is Hayek's view of the limits of our knowledge, and how useful price is to gather a huge amount of knowledge into a single number.

Perhaps a way to combine that in would be to ask what people would pay to avoid certain searches? Some of these are know-able: TSA precheck is $85/5 years; basic ventian blinds are $20/window. What would a motorist pay to avoid a traffic stop? How much does that vary by ethnicity, or other factors? I know when I was young, I worried more about prejudice against long-haired men. But also I can pay more now.

So I'm unsure where this would lead, but I wanted to share the idea on the chance that it's helpful.

Posted by: Adam Shostack | Feb 4, 2018 12:35:46 PM

Perhaps it is true that most laws devolve from "social norms and customs" and "the people's lived experiences." In one fashion or another, this view is often advanced in Fourth Amendment scholarship. I, however, find it difficult to anchor in this view any normative justification for Fourth Amendment jurisprudence. If widely shared sensibilities regarding privacy and autonomy are the proper basis on which to regulate search and seizure, then it seems to me that the politically accountable branches of government are likely to do a much better job of gauging those sensibilities than elite life-tenured lawyers appointed to the bench. Why should a the development of laws based on popular sensibilities be entrusted to a branch of government that is not politically accountable? Isn't the federal judiciary -- and indeed the Constitution -- best understood as countermajoritarian? And, especially in light of the view you have advanced in other scholarship that Fourth Amendment protections are best measured by state law, why not repeal the Fourth Amendment and leave these matters to state law?

Larry Rosenthal

Posted by: Lawrence Rosenthal | Feb 4, 2018 12:01:08 PM

"I invite those interested to actually read what I've said before criticizing and condemning it."

Thou protesteth too much. You would not ask Trump to learn the facts before tweeting his opinion, so why us?

Posted by: Black Bloc-and-Chain | Feb 3, 2018 6:35:57 PM

"the search for nationwide standards for what constitutes obscenity or hate-speech is highly questionable"

I would agree, but the answer is not to look for community standards for obscenity or hate-speech, but to get rid of those two categories altogether.

Posted by: MS Dossier | Feb 3, 2018 6:28:57 PM

The above responses reveal the Orin Kerr I like the best...

"But in that broad sense, Supreme Court opinions also reflect the lived experiences of the Justices and of "the people" more broadly, as perceived by the Justices or portrayed in the briefs"

That is a huge gap large enough to drive a semi through. The people's lived experience versus the way those experiences are perceived by some Harvard educated snob. It seems to me that the very purpose of a higher education is to acculturate a person to something other than "the people's lived experience." Skull and Bones NOW there is a real representative of "the people."

Posted by: James | Feb 3, 2018 3:49:28 PM

As I explain in the article, positive law -- both common-law and statutory -- that addresses the security we have in our persons, houses, papers, and effects are generally the end result of an evolutionary process that begins with social practice, norms, and customs. Such statutes generally codify, clarify, or choose among competing common-law rules. I invite those interested to actually read the article, as opposed to a necessarily incomplete two-paragraph blog post.

Posted by: Michael J.Z. Mannheimer | Feb 3, 2018 2:36:59 PM

Isn't there kind of a feedback loop between the actual law and the REOP? REOP informs the law—and absent a specific edict we try to conform the law to REOP. But the law also informs REOP—kind of like "equity follows the law," and if an EOP is contrary to the law that makes it less likely (though it doesn't determine) that it is reasonable.

Posted by: Wondering | Feb 3, 2018 12:44:58 PM

"Do you deny that statutory schemes are generally built upon a bedrock of pre-existing contract, property, and tort law principles?"

Yes, unless "built upon" has some specialized meaning I'm missing. Pretty much the whole point of statutes, I would think, is to chart a different course when the "bedrock of pre-existing contract, property, and tort law principles" are deemed inadequate.

Posted by: Orin Kerr | Feb 2, 2018 9:57:05 PM

Do you deny that statutory schemes are generally built upon a bedrock of pre-existing contract, property, and tort law principles?

Posted by: Michael J.Z. Mannheimer | Feb 2, 2018 8:53:10 PM

I imagine that the Energy Reorganization Act was a response to the lived experiences of nuclear regulators, and that of the nuclear energy industry. But in that broad sense, Supreme Court opinions also reflect the lived experiences of the Justices and of "the people" more broadly, as perceived by the Justices or portrayed in the briefs. So I don't see that any conclusion about top-down vs. bottom-up Fourth Amendment law follows from trespass law or reasonable-expectation norms originating in lived experience (which in any event is only a descriptive claim, so I really have no idea how any conclusion about what Fourth Amendment law *should* look like can follow from it).

Posted by: Asher Steinberg | Feb 2, 2018 7:21:35 PM

Michael writes: "But the origin of all laws is in the people’s lived experiences. "

Do you really think so? When Congress enacted the Stored Communications Act at a time before most people had heard of the Internet or e-mail, how did it reflect the "peoples' lived experience"? When Congress enacted the Energy Reorganization Act of 1974, what "people's lived experience" was the origin of that one?

Posted by: Orin Kerr | Feb 2, 2018 7:05:32 PM

Correct , but not bottomed up , but rather triggered up . That is to say , that it is triggered by living people and realistic occurrences , yet , judged and prevailed not by people or laymen , but rather , professionals and the legislator . This is because , whatsoever , laymen , can't exceed it , and wouldn't be able never ever typically to exceed it ( unless of course he would decide not to become rocket scientist but rather law expert ) . Instincts , life experience , intelligence , logic , can't guide laymen in this regard . This is fact of life !! No one can challenge it !!

Also , when dealing with customs , there is no great and substantial differences between different groups or publics , at least if it is in the same state or culture . Whatsoever , it is up to the legislator , and even more on courts rather to define it , surly when it comes to fourth amendment searches . If the instinct and life experience , can't help and guide a person , how would it help ?? suppose that police officers storm a home , without warrant , without probable cause , without nothing ( objectively ) but the search yields stash of one Kilo of cocaine , so , the occupant of the home , would think that he has a good chance to get away with it ?? that evidence shall be suppressed at court ? In most of the cases , his instincts , guide him , that he is about to have new home , new chamber in a correctional facility somewhere . And That was , less than negligible and basic illustration .


Posted by: El roam | Feb 2, 2018 5:23:44 PM

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